06-25-2008, 01:37 PM
I need help understanding what happens with medicare and/or social security set aside. My claims has settled but the C&R has not yet been sent for the judges signature. My attorney says that they are waiting for defense attys to receive something from medicare and/or SS. Does this mean that i will not receive part of my settlement amount? for example - if the settlement is for $250k - does this mean that the govt will take all but about $125k? Can someone please help me with this because my attorney will not help. I am in the state of California.
I don't know anything about California, but the Medicare set aside is as a result of a federal statute called the Secondary Payers Act. It applies in all states and the purpose of the law is to prevent IC from shifting the burden for future medical treatment to Medicare. The way it is set up is that before an injured worker can settle their claim for future medical benefits they must take MedicareÃ¢â‚¬â„¢s interest into account. If (1)the injured worker is actually Medicare eligible or (2) the settlement is equal to or greater than $250,000 and the injured worker has an expectation of becoming Medicare eligible within the next 30 months, Medicare pre-approval must be obtained for a set aside amount. The pre-approval process in mind numbing and often takes at least 6-9 months. Your medical records and medical cost records since the injury are evaluated and based upon your life expectancy and projected future treatment, a set aside amount is generated. Once a set aside amount has been approved, that amount is placed in an interest bearing account that may be self administered by the injured worker. Only medical bills related to the work injury WHICH WOULD OTHERWISE BE PAYABLE BY MEDICARE are paid out of that account. Medicare requires a yearly accounting of the funds used from this account, and if they are exhausted, Medicare will then begin payment for these bills. If the injured worker dies before the account is exhausted, the remainder goes to his/her estate.
ever think about just taking the permanent disability in a lump sum and leaving the medical benefits open?
that way there is no set aside needed.
the lawyer won't like it because the fee is reduced but you can stipulated to just the disability portion.
First, it is a rarity that I disagree with 1171, but Medicare does not allow a fee to be taken against the set aside amount, so there is no incentive for the injured worker's lawyer since this is a complete pain in the backside that he does not get paid for. The problem is the IC wants the medical settled.
As to lfoster21, since the set aside has to be pre-approved my Medicare for an injured worker who is Medicare eligible before medical can be settled; there is no guess work involved. The approved number is what needs to be set-aside. There are cases where the IC will try to settle before the approval with an agreement that they will fund up to a certain amount and the injured worker will fund the remainder, if any. This is always a bad idea because you never know how much Medicare is going to respond with, and there is no appeal process. So, whatever Medicare says the set-aside requires is what it requires.
A Workers' Compensation Medicare Set-Aside Arrangement (WCMSA), allocates a portion of the WC settlement for future medical expenses. The amount of the set aside is determined on a case-by-case basis and is reviewed by the Center for Medicare and Medicaid Services (CMS), when appropriate. CMS determines an amount that they feel should cover future medical. Once the CMS determined set aside amount has been spent and accurately accounted for to CMS, Medicare will then pay for future Medicare covered expenses related to the WC injury.
A Medicare Set-Aside Arrangement is submitted to CMS for review in the following situations: The injured worker is currently a Medicare beneficiary and the total settlement amount is greater than $25,000 OR The injured worker has a "reasonable expectation" of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.
I am in the process now of having my work comp case settled. I have been on social security disability for over 2 years now so there is no question that I will need a set aside. The insurance company hired a seperate attorney over a year ago to handle the medicare set aside for them. My drugs alone run over $1500.00 per month. In Illinois and maybe other states we are allowed to settle the indemnity portion of the case before the set aside but the total amount of the indemnity portion has to be included in the total settlement when submitted for approval to CMS. We are in the process now of trying to settle that part of the case and in the letter my attorney puts at the bottom that the insurance company must alot monies for any medicare set aside fund to the satisfaction of the appropriate federal agencies. If they agreed on a dollar figure it should have been explained to you at the time that it includes the set aside or it is in addition to the set aside.The settlement papers should have told you that much.
06-26-2008, 08:39 PM
(This post was last modified: 06-26-2008, 09:00 PM by WCisBS.)
Tim: can you give me the cite or a link on that atty fee prohibition?
that is definitely not my experience. I don't have a penn example but multiple other states with MSAs all have allowed a global (including trust amount) settlement fee for the atty .
(the msa is not reduced for atty fee but the msa amount is included in the calculation of the fee which is paid out of the remainder of the settlement proceeds.)
I not sure how the feds can assert jurisdiction over state work comp atty fee.
so for california the atty is based on the settlement amount that includes the MSA portion and not settling the future medical will reduce the atty fee; thus my comment.