Medicare Set-Asides in Med-Mal and Personal Injury Litigation

Section 111 merely imposes requirements, under threat of substantial penalties, on “responsible reporting entities” (RREs) such as liability insurers and self-insured entities to report any settlement, judgment or other payment involving a claimant who may be entitled to Medicare to the Centers for Medicare and Medicaid Services (CMS).

Nor, as yet, have any regulations been promulgated requiring set-asides in the third-party liability context, and at least one commentator has concluded that it is unlikely that MSAs could be required in tort cases in the absence of regulations. Id. Moreover, CMS has held a series of “Town Hall” telephone conferences since the enactment of MMSEA to discuss the impact of the Section 111 reporting requirements. In these conferences, transcripts of which are available on the CMS website, CMS has specifically taken the position that Section 111 does not mandate or specify anything about liability set-asides; that the set-aside process is separate from the Section 111 reporting process; and that CMS does not anticipate changing its routine recovery process. See MSA White Paper: The Use and Propriety of Medicare Set-Asides in Liability Settlements, The Garretson Resolution Group, www.garretsonfirm.com/garretson/news/?newsID=92.