In a personal injury case, Medicare set aside (MSA) arrangements can be confusing for both the plaintiff and the plaintiff’s attorney. Most personal injury attorneys don’t have the experience to coordinate MSA arrangements for their clients. A lack of experience and knowledge can lead to liability for the trial attorney involved in the case.
The Centers for Medicare and Medicaid Services (CMS) has not set any guidelines, regulations, or statutes defining the requirement for liability set-asides. However, Medicare is a secondary payer, as mandated by Federal law, and if any other insurer is available, Medicare will not pay the bills for a personal injury. Once the insurer becomes unavailable, Medicare will start to pay for medical costs. The CMS reviews LMSAs on a case-by-case basis, depending on the claim, the region’s bandwidth, and its leadership.
Does Your Client Need an MSA?
Considerations for a liability MSA need to begin as soon as the personal injury case starts. However, it’s difficult to decipher CMS communications regarding LMSAs. There are harsh consequences for clients whose attorneys do not make the right decisions for their needs. It could even lead to those clients not being able to access Medicare benefits later.
Even though there are no straightforward guidelines for liability MSAs there are some fundamental questions you can ask yourself to see if an MSA may be in your client’s best interest:
- Is your client eligible for Medicare benefits?
- Will your client need care in the future related to the accident?
- Does the case cover future medical payments?
If you can answer “yes” to all these questions, it’s time to consider an MSA for your client.
It’s important to document the case, especially when an MSA may be involved, including obtaining copies of your client’s insurance cards. Being upfront with your client about the reality of setting up an MSA can help manage their expectations of what will happen with the settlement after the trial.
Consulting with a knowledgeable settlement planner can take a noticeable weight off your shoulders. They are used to wading through the communications and updates of CMS and keeping clients’ best interests in view.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.