Not a simple question to answer. Although Worker's Compensation Medicare Set-aside Arrangement (WCMSA) is the recommended method of "protecting Medicare's interests" in worker's comp settlements, there is no statutory or regulatory provision requiring a WCMSA. WCMSA proposals are directed by a series of memos describing the "recommended" procedure and thresholds for submitting the proposals to CMS. The review process is voluntary.
That being said, there has been talk for a couple of years, and again more recently that CMS is expanding the "voluntary" review process to include liability and no-fault settlements. I'm assuming the reference to dialysis costs are liability related.
What is required under the Medicare Secondary Payer Act is that Medicare be the secondary payer when a primary payer (group health plans, worker's compensation, no-fault, auto insurance, and other liability coverage such as homeowners, malpractice, product liability, general casualty etc) is reasonably expected to cover the services. When a case resolution includes money for future medical expenses, Medicare expects the money to be spent on the future medical expenses for the related care. They want to see that the costs for care are not intentionally shifted to Medicare. How that is done remains a debate.
I have seen some say do nothing until there is a formal announcement, some estimate an amount and account for this in the settlement agreement, others do an MSA to show Medicare's interest have ben considered. Medicare is unlikely to review the MSA or respond if submitted. Some attorney's feel this at lease establishes a record that you have in good faith tried.
It seems to be an individual decision with opinions all over the board. In cases with high future medicals, most seem to error on the side of caution and set something aside.
Not sure if this answered the question.
Original Message------
I'm interested to know if you have seen LCPs end up with Medicare Set Asides when the litigation issue is renal failure resulting in the need for dialysis.
I have heard people say that Medicare Set Asides are only done in Workers' Comp cases, but I have also heard individuals from Medicare indicate that the idea of protecting Medicare's interests applies across the board.
Thanks,
PattyC
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Patricia A. Costantini
PattyC4303@comcast.net
Pittsburgh, PA United States
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