Medicare Set-Asides and Third-Party Liability
Posted on November 11, 2011 by Tower MSA
Hinsinger v. Showboat Atlantic City, 420 N.J. Super. 15, 18 A.3d 229 (N.J. Super Ct. Law Div. 2011)
In Hinsinger, the New Jersey court applied the same standard to Medicare set
asides created with money obtained from third-party liability claims as it does
with money obtained from workers’ compensation claims. This rationale is premised based on the long understood policy of protecting Medicare’s interests from primary payers.
Based on a personal injury action, the parties to this case reached a settlement agreement in the amount of $600,000.00. The claimant had become a Medicare beneficiary in 2009. In order to protect Medicare’s interests, $180,600.00 of the $600,000.00 was allocated to a Medicare set aside account. After this settlement was reached, the claimant’s attorney filed a petition to recover his attorney fees from the Medicare set aside account. The trial court held that the attorney could deduct his fees from the Medicare set aside account.
The first issue was whether the same standard should apply to MSA’s created with money from third-party liability cases and MSA’s created from workers’ compensation claims. The court held that the attorney was able to deduct his fees from the Medicare Set Aside Trust by applying the same standard as a workers’ compensation Medicare Set Aside
The second issue was whether the attorney’s fees could be deducted from the Medicare set aside account. The court explained that the amount of money deducted from the Medicare set aside account for procurement costs was computed using the ration of the procurement costs to the total settlement or judgment. The court in this case stated that 42 C.F.R. § 411.37 (2008) was applicable and since the ratio of procurement costs to the total settlement of $600,000.00 was 32.778%, that ratio was applied to the amount of money allocated for the procurement costs.
The court went as far as stating that “the Center for Medicare and Medicaid Services has stated multiple times that the same statutes that necessitate or otherwise apply to Medicare set asides in workers’ compensation cases apply to third-party liability situations.” Once the court determined that parties to a third-party liability action needed to consider Medicare’s interest, the court then applied the workers’ compensation
standard to arrive at the their conclusion that attorneys’ fees incurred to procure a settlement may be deducted from the money allocated to a Medicare set aside.
Zaleppa v. Siewell, 208, 9 A.3d 632 (Pa. Super. 2010)
In Zaleppa v. Siewell, a 69 year old woman was injured in a car accident and
subsequently obtained a judgment in the amount of $15,000.00 against the driver
who hit her vehicle. The jury determined that $5,000.00 of the $15,000.00 would be allocated to provide for future medical expenses associated with her injuries. Defendant filed a motion requesting the court to name Medicare as the payee of the $5,000.00 to ensure that Medicare would recover conditional payments. The trial court denied Defendant’s requested relief.
On appeal, the court noted that there was no evidence presented to show that Medicare had even paid any conditional payments to the Plaintiff and that the Medicare Secondary Payer Act bars private entities from essentially asserting the interests of the government by insisting that Medicare be named as payee on the settlement check.
Schexnayder v. Scottsdale Insurance Co., 2011 U.S. Dist. LEXIS 83687 (W.D.la. July 28, 2011)
This case involved both a workers’ compensation claim as well as a third-party liability claim.
In Schexnayder, plaintiff was injured in an automobile accident while working. Settlement was reached in both the plaintiff’s workers’ compensation action and liability action. The liability settlement provided a Medicare set aside allocation in order to protect Medicare’s interest under the Medicare Secondary Payer Act. CMS approval was
sought but was however, advised that the proposed Medicare set aside would not
be reviewed or approved in the not too distant future. The reason for that response from CMS was neither due to the fact that the plaintiff was not a Medicare beneficiary nor
within 30 months of qualifying for Medicare.
The court stated that Medicare does not currently require or approve Medicare set asides when personal injury lawsuits settle, nor do they have a current policy or procedure in effect regarding the adequacy of future medical expenses set aside in liability cases.
The court held that the amount of money allocated to future medical expenses (as evidenced in the settlement agreement), reasonably accounted for Medicare’s interest.
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