Is a Medicare Set-Aside a lien by the carrier?

[Danabell]

Hi everyone! I settled my wc case for a lump sum which included a medicare set-aside. My third-party action is close to settling too - but there is an issue. Is the medicare set aside which was paid for by workers' comp. carrier, exempt from the wc lien? My wc atty said that the money for the set-aside is not a lien in the third party action. My lawyer handling the 3rd party action has no clue if the comp. carrier can claim a lien on the mediare set aside money. Does anyone have an opinion or experience that may be able to help me? The set aside is close to 50k so the issue is really important. Thanks for any and all replies, Danabell (in upstate NY)

[kate]

A Medicare Set- Aside is used to protect Medicare’s interests. MSA’s are designed to "set-aside" a portion of the settlement for payment of future medical expenses related to the workers' compensation injury.

I believe a lien can only be asserted against that portion of a settlement that is allocated to past medicals but I’m not certain. Timothy Belt is an attorney and is around fairly often. He should be able to answer that,

[Tuffy]

Kate I think you are right, when it came time for me to settle, Medicare placed a lein on my settlement, I could not get my settlement untill Medicare found out I had not used it for any of my medical bills. I did not need a Medicare set aside as I was already on Medicare , and SS retirement at the time of my injury, but still working and had insurance through my employer. If this makes any sense.

[1171]

it may depend on the administration of your set-aside.
who is administering it?
CMS allows self-administration and if the funds are disposed of inappropriately then they will withhold medicare payments until the disputed amounts have been credited.

as of yet there is no legal appeal process for medicare set aside decisions and thus no "lien" is available.

[Danabell]

Thanks so very much for the responses. The medicare set-aside is self administered. I don't have an issue with medicare but with the comp. carrier. The carrier is looking for me to pay back (less 1/3 and expenses) all monies it paid. The law in NY says that I have to pay back the carrier for compensation and "expenses for medical treatment paid or to be paid". My comp. atty doesn't believe the set-aside monies are a lien but isn't so sure. I have spent hours (at least 10) trying to get the answer but I have not been successful. Thanks again guys. It was really thoughtful of you to take the time to help. Regards, Danabell

[1171]

seems strange. most settlements are for future monies.
it doesn't make sense that they would send you a settlement check then bill you for what they already paid out.
it doesn't sound like that was the understanding of all the parties at the time they agreed to the amount.
if the settlement is cancelled won't they have to pay all the medical?
they can't get a better deal by settling then they the would if they didn't.

[admin]

1171, I think she is talking about a lien on her settlement from a 3rd party liability case.

[1171]

aahhh---
if so, subrogation rights will allow workers comp to be repaid for most all of it's costs out of your third party $$
you can't get a double recovery for the same injury.

[Danabell]

1171 Wrote:aahhh---
if so, subrogation rights will allow workers comp to be repaid for most all of it's costs out of your third party $$
you can't get a double recovery for the same injury.

"repaid most all of its costs". That is my understanding as well. However, I was told that there may be an exemption from the lien for the monies paid by my workers' comp. carrier for the medicare set-aside. I don't know if such an exemption exists and neither do my attys. I am trying to find out if the medicare set-aside monies (paid by the wc carrier) cannot be included in the lien. Thanks for all the replies. Very much appreciated, Danabell

[Timothy Belt]

I don't know about your state, but in PA the right to subrogation by the WC carrier against a third party recovery is absolute. This would potentially include not only past benefits but the WC settlement amount. In PA, the parties may reduce or eliminate this lien in the WC settlement itself, but language to that affect would have to be in the settlement agreement. Therefore, I would start by asking the WC lawyer whether the lien was compromised or waived, and if so, where is this reflected in the agreement.