Medicare Set-Asides

5. When is the best time to start the MSA process?

The best time to start determining if an MSA is going to be required is as soon as possible. For defense attorneys, it would advisable to include some questions about a claimant’s Medicare status in the first round of written discovery requests. A claimant’s attorney should inquire about the client’s Medicare status during the initial interview.

If the claimant/client is a Medicare beneficiary, it is beneficial to have this information out in the open and available to all of the necessary parties (attorneys, adjuster, judges, case managers) early in the process so that everyone knows that at some point prior to settlement the issue of protecting Medicare’s issues (an MSA) will have to be addressed.

Although dealing with The Centers for Medicare and Medicare Services (CMS) in obtaining MSA approval can be a daunting and time consuming venture, there is an upside. The parties are not prevented from obtaining CMS approval of an MSA before the case settles.

In fact, once approval is obtained the approval does not ‘expire’ for lack of a better word. Therefore, if the parties obtained CMS approval early on in the process, continued to litigate, and settled the case a year after the approval, the parties could incorporate the approved MSA amount into the settlement agreement. This is actually the best case scenario for everyone involved because the settlement process is not stalled while the parties try to obtain CMS approval of an MSA on the eve of settlement.

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All of the content was prepared by Michael R. Merlino II, an attorney in Georgia who focuses on his practice primarily on MSAs. He prepares MSAs for many large self-insureds and insurance companies. If you have questions, he can be contacted at 770-374-3697 or mmerlino@gmail.com. He also has a website devoted to MSAs, which is updated frequently: www.wcmsainfo.com