Copyright © 2020 Charles E. Boyk Law Offices, LLC. All rights reserved. Reproduced with Permission.
If an Ohio personal injury plaintiff is settling a personal injury case and is a current Medicare recipient or will be Medicare-eligible within 30 months of the settlement, the law generally requires that the plaintiff “consider Medicare’s future interests” and “set aside” money from the settlement to cover the cost of the plaintiff’s future medical care. This is commonly referred to as a “Medicare set-aside” or MSA. Although in the context of an Ohio Workers’ Compensation settlements MSA’s have become the norm and are generally addressed in all of the relevant cases, there are lingering questions as to whether an MSA is always appropriate outside of the Toledo Workers’ Compensation context.
Arguably, federal regulations place liability on Ohio attorneys (plaintiff and defense) and their law firms for failing to properly consider Medicare’s interest and/or enter into an MSA when appropriate. As such, attorneys are often reluctant to forego an MSA, because they perceive a risk of liability to themselves if Medicare begins to “ask questions” and the attorneys are unable to show that they had considered Medicare’s interest. However, lately attorneys have been taking a closer look at the regulations in question, and there has been significant discussion as to whether the regulations actually call for personal liability of the attorneys and their law firms.
Opponents point out that Medicare has only pursued recovery against attorneys in a handful of published cases and that there is little precedent or legal support for holding an attorney liable for a failure to consider Medicare. Unfortunately, up to this point, there has been little guidance from Medicare or the courts as to the proper protocol for attorneys and their clients to follow when they are considering Medicare’s interest.
Obviously, plaintiff’s attorney and their clients would rather not be burdened with the process, would rather maximize the present dollar amount that the attorney is able to put into his or her client’s pocket, and would rather let Medicare pay for any subsequent care and/or treatment whether related to the accident or not. At the same time, the attorney has a duty to see to it that the client is following the law and that the attorney is not exposing him or herself to liability for failing to adequately consider Medicare’s interest.
In sum, while every case has to be evaluated on its own, the safest route is to consider Medicare’s future interest for any current or soon-to-be Medicare beneficiary and set aside an amount that all parties agree upon as being sufficient to cover future care relative to the personal injury claim at issue. So long as the parties are able to show that Medicare’s interest has been considered via documentation in the file, there is little risk for any of the attorneys or their clients to be liable to Medicare in the future, even if the MSA is ultimately exhausted. It is being able to show that Medicare’s interest was “reasonably considered” that is of paramount importance.
Perhaps one of the best and most fool-proof ways for attorneys and their clients to show that they have done their part to duly consider Medicare’s interests is to retain a firm that specializes in MSA’s such as the Garretson Resolution Group. Simply being able to show Medicare that the attorney and client took the time and incurred the expense of hiring a third party to evaluate the matter and recommend (or not recommend) an MSA and a given amount should be more than sufficient to show Medicare that its interest was properly considered.
If you have any questions about Medicare Set-Asides and whether your settlement would be subject to an MSA, contact the Toledo, Ohio attorneys at the Charles E. Boyk Law Offices, LLC today.
Charles E. Boyk Law Offices, LLC