When it comes to lawyers for injured parties, defense lawyers, and insurance claims professionals, Medicare is probably causing more ulcers than it has ever paid to cure. Under the rubric that “all persons must protect Medicare’s interests,” insurers and lawyers on both sides are being told by people who have a vested financial interest in doing so that when a liability personal injury case is resolved by judgment or even settled, a Medicare Set-Aside (MSA) account should be established. This is a groundless position, and MSAs are not required as a means of protecting Medicare’s interest for future medical bills. In fact, I believe that insurers who utilize MSAs in an attempt to “safeguard Medicare’s interests” for future medical costs are putting their companies at risk of increased litigation costs and possible extra contractual (bad faith) exposure.

RELATED: Read Part 1 Here

In the second part of this three-part series, we will see that MSAs are only required in certain workers’ compensation settings; no case law supports the mandatory use of an MSA in a liability case; the Centers for Medicare & Medicaid Services (CMS), the agency that handles these issues for the government, does not require MSAs and is vague about whether they should be used; and discuss why the use of MSAs in third-party liability cases is not a good idea for any involved parties and increases litigation costs dramatically while possibly exposing the carrier to bad faith damages.