Workers' Compensation, Mediated Settlement and the Medicare Set-Aside Trust
Attorney
(866) 735-1102 Ext 335
Medicare set-aside trusts, social security set-off language and workers' compensation benefits complicate any settlement. Know what you're doing or don't do it. There is more than what I've described, but this part of the protocol is being posted to give both attorneys unfamiliar with this area and clients who need direction in selecting a competent lawyer to see what is involved. It's complicated so if you don't know what I'm talking about go find a lawyer who does. Seek qualified legal advice.
I've been asked to discuss how workers' compensation (WC) benefits, a Medicare Set-Aside (MSA) Trust and the Social Security set-off language (SSL) should be set up for a worker who is totally and permanently out of her job. I've been working on a protocol for such claims as the interplay between the MSA and SSL is extremely important when settling a WC claim. Following the law is even more important when you're talking about permanent total disability and a large monetary settlement for a person already receiving Social Security benefits.
The person asked me the following question:
THE PROBLEM: My mother was involved in a workers compensation case in the state of Iowa. The case went to mediation and she was awarded (yet to be paid) a sum of money. The results of the mediation have set up part of the money to be received to go into a trust to pay for future medical expenses through Medicare. This is due to her age. Does this sound fair as the doctors have stated she is permanently disabled due to a back injury? Also, we believe my mother's law firm may have had a conflict of interest with this case, as their firm represented doctors office (satellite office), which is owned by the hospital of which she worked when she was hurt.
Hello and thank you for posting this question. I'm in the process of settling a similar claim for a client so I can appreciate your concerns and questions. The issues involved with workers' compensation and a Medicare Set Aside Trust along with Social Security set-off language are far too complicated and individualized for any one post. So before reading further understand that you will need to have an attorney, an attorney who is familiar with these types of cases and is up to date on the regulations. Your mother has one chance to do it right. So get good solid legal advice. Don't be afraid to get a second opinion. She deserves it. Don't be afraid or embarrassed to go with your mother when she see's the attorney and to ask questions.
The best advice I can give you is to seek a second opinion from a qualified lawyer. My firm handles legal practice claims and I have seen no fewer than three claims in the past few years from the social security set-off language or the trust being mishandled. Therefore, when seeking a second opinion don't be afraid to ask about the attorney's qualifications. Ask if the attorney handles these types of cases and if so how many cases. If the attorney seems put off by your question go find another attorney.
I have been working on a protocol for Medicare Medical Set-Aside Trust Fund Settlements. This protocol is only a starting point, because every case is different. Don't think you can follow this protocol and do it yourself. These issues do not lend themselves to the self-checkout line like at the grocery store.
PRACTICE POINTER CHECK LIST:
1. Whenever an MSA is involved don't settle for the commuted value. This is especially true of the MSA is being funded with a structured settlement.
2. Set aside some money for Medicare premiums, deductibles and coinsurance.
3. Require that the MSA be administered by a TPA and that the WC insurer increase it's contribution or structured settlement pay-out by the amount of the TPA administrative fees.
4. Require the TPA to issue a plastic card to the Claimant for paying related medical expenses.
5. Require the TPA to provide the claimant with semi-annual reports accounting for the MSA fund.
6. Require the TPA to use an interest bearing account to hold MSA funds.
7. Include Social Security set-off language in the final agreement.
8. Set off and clearly describe in the settlement documents the amount shown in #2 for future medical expenses to avoid having it count towards Medicare set off eligibility.
9. If no attorney fee is being taken on the amount in #2, then add a provision that no atty fee will be taken on #2 above.
10. Add language that clearly states the additional money paid under #2 is for future medical deductible, co-insurance and premium costs and is not in any way considered wage replacement or weekly indemnity funds.
11. Claimant is allowed to name a beneficiary for trust funds that are not by law required to be paid to any other person or entity.
12. Weekly indemnity benefits will continue to be paid until CMS approval is issued, after which the settlement funds will be immediately released and if not immediately paid, weekly indemnity benefits will continue.
13. Add the social security set off language and consider all sources for life expectancy.
14. Clearly describe in the social security set-off language the net to the Claimant.
15. Secure the rights of the claimant to name a beneficiary of any moneys in the MSA at the time of their death.
16. Think long and hard about the amount in number 2 (above) needed to protect the injured claimant.
There is more but this part of the protocol is being posted to give both attorneys unfamiliar with this area and clients who need direction in selecting a competent lawyer to see what is involved. It's complicated so if you don't know what I'm talking about go find a lawyer who does. Seek qualified legal advice.