It seems as though the conversation persists regarding the duty of trial lawyers and the responsibilities of their clients in liability cases when they are Medicare beneficiaries.
This post is intended to provide a practical guide to getting to a “plan of action” with clients. For a more detailed review of the state of the law, see NAELA white paper here.
So you’ve just settled a case and it’s easy to determine you brought a claim for future medical, and based on your settlement, it’s likely any lay person could assume that you’ve made a recovery for at least a portion of future medicals. Your client’s primary physician isn’t willing to make a determination that “no further” medical treatment is expected.
This fact pattern is common, and the summary of our philosophy regarding what to do is this:
You have made a recovery for future medical from a self insured or a liability policy, and therefore you should document how you are “adequately considering” the governments(Medicare trust fund) interest. Every good settlement plan will do this.
ATLA, now AAJ argued in Ahlborn, that “Equitable Apportionment” is reasonable, and under the “Made Whole Doctrine” considering the whole of the facts and various allocations within any particular case has merit. See the Amicus Brief here.
1. Hire a 3rd party expert loyal to plaintiffs to determine that either; NO MSA is necessary, or if one is reasonable, then offset the “Total Future Medicare” number by allocating damages, discounting for partial recovery and offsetting for fees and costs. This significantly reduced MSA will act as a small insurance policy as the logic of the current law today supports your allocation and your process. WARNING – working with a company who provides Medicare Set Aside Allocations to Workers Compensation Carriers may lead you down the wrong path, as would agreeing to letting the defense “handle” the MSA.
2. Do NOT submit, or agree to submit to CMS for approval. Medicare Set Asides are voluntary, even in Workers Compensation cases.
3. Even after significant offsetting, if the MSA is greater than $50,000, consider using a professional administrator.
4. Fund the Medicare Set Aside with a traditional annuity, which will guarantee payments to your clients’ Estate, in lieu of a structured settlement annuity proposed by the defense.
Liability Medicare Set Asides will become a reality when the current ANPRM becomes regulation, so getting used to the process, and the companies that provide these services in your practice now is prudent.
Milestone Consulting provides these services for a fee of $750-$2000 given the complexity of the case.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).