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20 Helpful Tips Every Plaintiff Attorney Should Know About the Medicare Secondary Payer Act and Medicare Set Asides

B. Josh Pettingill, MBA, MS, MSCC

1.  Addressing Medicare’s past interests (resolving conditional payments) is an issue for everyone involved in the lawsuit/settlement process. Don’t forget to get the final demand letter from MSPRC before you disperse funds to your client.

2.  The Medicare future interest issue is a plaintiff issue, not a defense issue. Don’t let the other side convince you otherwise. Take control of the MSP process early on in the negotiations.

3.  A Medicare Set Aside (“MSA”) is not required by any law but it is Medicare’s preferred method  to protect their “future” interests and comply with the Medicare Secondary Payer Act.

4.  The CMS Submission and review process for liability MSAs is completely voluntary, so don’t agree to it as part of the settlement. You do not want to be stuck waiting for months to hear back from them and there is no formal appeal process if Medicare disagrees with the MSA allocation for future medical.

5.  The MSA can be self-administered or professionally administered. Professional administration is the best way to ensure your client is protected.

6.  An MSA can be funded with a lump sum or with an annuity. Annuity funding is cheaper (20-30% discount) than lump sum, which means more cash in your client’s pocket and a happier client.

7.  An MSA utilizes a rated age vs. normal life expectancy for calculating future medicals. Since life expectancy is reduced when a rated age is issued, it means less money has to be set aside because future Medicare covered services is calculated over remaining life expectancy. In turn, this means less money is needed to fund the set aside and more cash is available to your client.

8.  Never put the actual MSA amount in the release. This can potentially limit your client’s ability to deduct medical expenses as an itemized tax deduction.

9.  For “small cases” involving a current Medicare beneficiary, you still need to take into account Medicare’s future interests. There is no “small case” exception or safe harbor.

10.  CMS is going to know about the client’s settlement by way of conditional payment resolution or through the Mandatory Insurer reporting requirement. If your client is a current Medicare beneficiary, they will find out about the settlement

11.  Make sure your file is documented indicating the steps taken to address Medicare’s future interest. If Medicare ever audits your file in the future, you need to show them adequate steps were taken to protect their interests.

12.  There are many CMS Memorandums on WCMSA’s.  There are only 2 of them which pertain to Liability MSAs and only one of those is from CMS headquarters.

13.  The Medicare Secondary Payer Act has been interpreted by CMS as requiring protection of Medicare’s future interests. The MSP is the only law dealing with Medicare as a secondary payer.

14.  “Benoit v. Neustrom” is must read case law on Liability Medicare Set Asides. Click HERE to see our CEO’s blog post on Benoit

15.  Do not agree to overbroad or general language in the release regarding MSAs.

16.  Do not ever make CMS approval of a liability MSA a condition of settlement. Some CMS Regional Offices refuse to review liability Medicare Set Asides.

17.  Do not ever let the defendant put Medicare on the settlement check. You will not be able to cash it and your settlement will be delayed. There is case law to support this position.

18.  The Medicare, Medicaid, SCHIP Extension Act (MMSEA) is simply a reporting requirement for Responsible Reporting Entities settling cases with current Medicare beneficiaries.  It created a means for CMS to track current Medicare beneficiaries and settlements.

19.  If your case is being reported to Medicare, make sure the correct ICD codes are submitted. Otherwise, your client could get treatment cut off that is unrelated to the accident.

20.  A Medicare set aside should only be used to pay for injury related medical expenses ordinarily covered by Medicare.

For all of your MSP compliance and Medicare Set Aside needs, please call us at 877-242-0022 or visit us at

Let Synergy be your knowledgeable and trusted settlement partner giving you peace of mind.   We resolve the most complex settlement related issues for law firms so lawyers can focus on being trial lawyers. Our team of highly skilled professionals includes attorneys, Certified Financial Planners, certified Medicare set aside consultants, subrogation experts, nurse consultants and case managers. We handle the difficult issues such as Medicare Secondary Payer compliance, structured settlements, public benefit preservation, lien resolution and complex settlement planning questions allowing you to concentrate on what you do best.

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