By now, you’ve surely tried navigating the perilous waters of the Medicare Secondary Payer Act (MSP) as it pertains to protecting Medicare’s future interests vis-à-vis a Medicare Set Aside (MSA).  You’ve surely heard arguments on both sides of the issue of ‘Do You Or Don’t You Need An MSA On A Liability Case’.

What we do know (and what YOU should know) for sure is that Medicare is secondary to all insurance including no fault and liability insurance, and that payment “may not be made under Medicare for covered items or services to the extent that payment has been made or can reasonably expected to be made under a liability insurance policy plan” (MSA= 42 U.S.C. sec 1395y(b)(5))

For liability cases involving future medicals, The Centers For Medicare & Medicaid Services (CMS) has issued very little guidance other than the requirement that the parties reasonably take Medicare’s interest into account.  Forgetting for the sake of this discussion whether an MSA is the required means to take Medicare’s future interests into account, or even whether it is the best or preferred means of doing so, I think most anyone would agree that it is at least one way of achieving this requirement. [Read more…]