Guest Commentary

Medicare Beware: Tread Carefully Into The Unknown

, The Connecticut Law Tribune

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Michael Raymond
Michael Raymond

It is generally agreed that until recently the lack of proper "coordination of benefits" in a liability settlement has worked to the detriment of Medicare. This has changed. According to the Centers for Medicare and Medicaid Services, Medicare saves now more than $8 billion annually on claims processed by insurances that are primary to Medicare. Today, more than ever, Medicare will not pay for services to the extent that payment has been made or can be reasonably be expected to be made under workers' compensation, liability, no-fault, automobile and self-insured responsible entities. Furthermore, Medicare has the authority to recoup payment from the rightful primary payer if necessary (42 U.S.C. 1395y(B)(2)(A)(II)).

At a minimum, plaintiff and defense counsel, insurance adjusters, and any organization that must report under §111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, including liability insurers, no-fault insurers, self-insurance, and workers' compensation plans and insurers, known as Responsible Reporting Entities (RRE), acknowledge that an understanding of the SCHIP act compliance issues is mandatory today. The Medicare Secondary Payer Act provides that Medicare may not make payment on behalf of a claimant for medical services or prescription drug therapy charges where payment has been made or can reasonably be expected to be made promptly (1) under a workers' compensation law or plan of the United States or a state; (2) under a liability policy (including a self-insured plan) or automobile no-fault coverage; or (3) under a group health policy. If one of these primary plans does not pay or cannot be expected to pay promptly, Medicare may make the payment "conditionally." Further, the statute provides that if the settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition, the settlement will not be recognized.

The impact on the settlement could be catastrophic. Over and above the risk that the Centers for Medicare and Medicaid Services may not recognize the terms of the settlement, the claimant may lose Medicare coverage, and the Office of General Counsel may make demand or bring suit against the claimant and attorneys. (See United States v. Harris, No. 5:08CV102 (2008) U.S. District Court, Northern District of West Virginia).

Attorneys today must carefully determine if their client is a so-called Class I or II qualified individual. Class I includes those who are Medicare beneficiaries at the time of settlement, age 65 or over, or have been receiving Social Security disability benefits for 24 months or longer. Class II comprises those who have a "reasonable expectation" of becoming a Medicare beneficiary within 30 months and the total settlement amount is $250,000 or greater. At a minimum, a board-certified medicare set-aside specialist should be brought into cases now more than ever.

Angelo Sevarino, an attorney in East Windsor, has extensive experience in workers' compensation and liability Medicare Set-Asides and advises that the "proper use of a liability Medicare set-aside (LMSA ) is entirely voluntary and referral of any LMSA is not required at the moment, but is generally considered the best method we have today to document that you have properly considered Medicare's interests in the settlement and provide a level of certainty as to the client's future access to Medicare coverage."

Malpractice Suit?

Furthermore, in some cases, there is risk to attorneys, even if the claimant does not fall under the guidelines of Medicare set-aside compliance upon settlement. For example, let's say a 45 year-old-male was severely injured in a personal injury case. The man is injured enough to make any reasonable person agree that he should or may never work again. This man, however, wants to work. He states to all concerned during settlement proceedings that he plans on working at least another 10 years—"God willing." As a result, he receives his substantial settlement unprotected by a special needs trust or Medicare set-aside — an outside Medicare set-aside expert was never called in. The claimant's attorney is satisfied and is more than happy to pass on the settlement check to the client.

Then sadly, two years later, the man realizes he cannot do what he had hoped for. He quits his job, and applies for Medicare and Social Security Disability benefits. We know the outcome here. Medicare has no responsibility whatsoever to pay this man's medical bills for his accident-related medical expenses until the settlement assets are spent first. The client may attempt to sue his own attorney for malpractice, claiming he was not properly advised.

We are not aware of any Connecticut case where the attorney has been sued or had a grievance filed against him or her for not properly advising the client of failure to establish a set-aside. That is not to say there is no such case in the pipeline in Connecticut. We do know of cases in other states though, including Grillo v Pettiete, in the 96th District Court in Tarrant County, Texas (2001). In that case, it was successfully charged that the plaintiff's attorneys failed to employ or consult "competent … experts in taxation, trusts, and/or structured annuities" resulting in an out of court settlement for $1.6 million. There are no winners in this potential legal drama.

The potential issue may be mitigated to some degree with some planning. The attorney should consider bringing in settlement planning experts—a team proficient in Medicare set-aside law, taxation, elder law, and settlement and investment advisory services. Once all the options are discussed in detail, the client should be asked to sign a well-crafted individually designed Informed Consent as to Medical Expenses or Care with Self-Administered Liability Medicare Set-Aside Account. This helps and informs properly all concerned.

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