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Recent Liability Medicare Set Aside Case Law – No MSA Needed

B. Josh Pettingill, MBA, MS, MSCC
Vice President of MSP Compliance

The “law” as it relates to Medicare Set Asides in liability settlements is an evolving area with new developments happening quite frequently. This year there have already been several noteworthy legal decisions pertaining to the protection of Medicare’s future interest in liability settlements. Below is a discussion about a recent case with important pointers for attorneys and plaintiffs when there will be no future care.

Berry vs. Toyota

On January 10, 2015, the United States Western District Court of Louisiana released its opinion in Berry vs. Toyota Motor Sales. The court concluded there was no need to establish a Medicare set aside, given the fact that all of Mr. Berry’s treating physicians signed affidavits indicating no future accident-related treatment was going to be required. It was not surprising the court came to this conclusion given that there was already a Centers for Medicare and Medicaid Services (CMS) policy memorandum from the CMS headquarters indicating the same. Below is an excerpt from the memo:

Where the beneficiary’s treating physician certifies in writing that treatment for the alleged injury related to the liability insurance (including self-insurance) “settlement” has been completed as of the date of the “settlement”, and that future medical items and/or services for that injury will not be required, Medicare considers its interest, with respect to future medicals  for that particular “settlement”, satisfied. If the beneficiary receives additional “settlements” related to the underlying injury or illness, he/she must obtain a separate physician certification for those additional “settlements.”

In other words, there is no need to establish a Medicare set aside if the treating physician attests in writing that no Medicare covered future treatment is needed for accident related care.

Facts of the Case:

  1. All of Mr. Berry’s primary physicians signed affidavits indicating no future treatment was required as related to the accident.
  2. Mr. Berry signed an affidavit indicating he was not going to treat in the future for accident related care.
  3. The settlement was contingent upon the court ruling no MSA was needed and that both sides had adequately taken into account Medicare’s interests.


The court held that based upon the evidence submitted no MSA was required.  This was based upon the affidavits of the treating physicians which went to reasonably foreseeable future medical needs or lack thereof.

The Takeaways:

  1. The court’s opinion was in line with the CMS policy memorandum of September 2011.
  2. There is no special attestation form provided by CMS for treating physicians or the plaintiff to sign. All that is needed is an attestation on the physician’s letterhead indicating no future treatment is required for accident related care.
  3. A court can recognize and affirm Medicare’s interests have been adequately taken into account by the settling parties if so desired.

All parties felt the need to get the court’s blessing that Medicare’s interests were adequately taken into account even though a policy memorandum from the CMS regional headquarters on this exact issue already existed. The plaintiff also had to sign an affidavit indicating he was not going to treat in the future for accident related care. Without knowing the exact details, we have to assume both sides were overly concerned about protecting Medicare’s interests to take such actions. Let’s revisit the CMS policy memorandum issued by CMS headquarters on September 30, 2011.

This CMS memorandum is important for a number of reasons. It is the first and only official memorandum from CMS headquarters in Baltimore to address liability Medicare set asides. It also provides a mechanism, if the case facts fit the criteria, to avoid the necessity of establishing a liability Medicare set aside. As discussed above, this memorandum provides a limited exception as the treating doctor must attest in writing that all of the treatment for the released injuries was completed at the time of settlement.

When the case facts meet the criteria, securing the attestation from the treating providers is only part of the steps toward MSP compliance. In addition, attorneys still need to educate their clients on potential future ramifications of the attestation. Specifically, if a plaintiff ever has to treat again in the future for accident related care; they can’t seek to have Medicare cover that care. This case and more importantly the memorandum, gives clear guidance to the plaintiff when there is no future accident related treatment as to how to properly document what they did to comply with the MSP.

Synergy was recently retained on a case where the plaintiff was a current Medicare beneficiary and claimed he would not need any future accident related treatment. Post settlement, the plaintiff requested the attestation from his treating physician indicating the same. However, his physician refused to attest in writing that he would never require any additional treatment related to his accident. Ultimately, the plaintiff engaged Synergy to prepare a zero allocation report as evidence that Medicare’s interests had been taken into account. After Synergy reviewed all of his medical records and prescription payouts, it was determined there was in fact a nominal amount that should be set aside. The MSA report we prepared documented that Medicare’s interests had properly been taken into account by setting aside a small amount for future care.

For those plaintiffs who are a current Medicare beneficiary and future medical care is funded by the settlement, obtaining a Medicare set aside analysis is always the best practice. There are numerous ways to deal with Medicare secondary payer compliance to ensure all parties to the settlement are protected. At Synergy, we have the solutions that will help you settle cases compliantly for Medicare beneficiaries.

For all of your Medicare secondary payer compliance needs, please visit us at or call us at 877-242-0022.



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