There are no simple answers when complying with the Medicare Secondary Payer Act in your workers’ compensation, no-fault/automobile or liability claim. In any of these cases where future medical care and treatment is closed out, it is important to consider and protect Medicare’s future interests—do not forget about conditional payments too! Failure to address these issues at the time of settlement may result in Medicare considering the entire settlement null and void, regardless of what “Medicare savings” language you use.
In workers’ compensation cases, parties may consider submitting the Stipulation for Settlement for review and approval to Medicare. Improvements in the Medicare Set-Aside review process are making this more of an attractive option. In cases not involving workers’ compensation, parties should strongly consider using a Medicare Set-Aside or similar tool in the following circumstances:
- A Life Care Plan is included in the settlement;
- There is a combined workers’ compensation and liability component;
- Catastrophic injury cases likely to require future medical treatment (e.g., amputations, traumatic brain injuries, injuries that include a psychological component);
- Settlement includes a structured settlement (implied future medical treatment); or
- Future medical treatment is expected to continue as a result of the accident/injury.
Medicare Secondary Payer compliance should also avoid a “cookie cutter” approach. Each case must be reviewed and analyzed on its own unique facts.
MSP Compliance Solutions LLC