The subject of Medicare Set-Asides (MSAs) typically evokes more questions than answers. Are MSAs required under federal law? Why are MSAs used in workers' compensation cases but not liability cases? How do you calculate an MSA? Why does Medicare review some MSAs but not others? If Medicare won't review an MSA, does that mean we can ignore the issue? Obtaining an MSA Legal Opinion allows you to separate fact from fiction.
Just as clients seek advice from tax lawyers about tax issues or from real estate lawyers about real estate issues, it only makes sense that clients seek MSA advice from @MSALawyer. When that happens, you can:
1) Protect the Client;
2) Protect the Firm; and
3) Protect Medicare.
If you represent an injured person, you should be asking this critical question: "Do you want us to protect your future Medicare benefits as part of this case?" Most injured persons fail to realize that future Medicare benefits could be jeopardized if that person asks a medical provider to submit certain medical bills to Medicare post-settlement and Medicare pays those bills in error.
When asked that question, most would say, "Yes, I want my future Medicare benefits protected." While you could then take steps yourself to assess the issue and protect the client's future Medicare benefits, many choose to seek outside help. If you seek outside help, that help should come from a lawyer experienced in addressing the issue.
The MSA Legal Opinion becomes the client's best protection going forward. It advises whether a future medical obligation exists based on the case-specific facts. If one does, it then proceeds to present the client with potential vehicles (i.e., MSAs, Medical Savings Accounts, etc.) to ensure Medicare is not billed prematurely. It presents potential funding and administative options. It contemplates whether one must ask Medicare to review/approve the MSA. Finally, it shares a path to obtain a judicial allocation on the merits of the case, which Medicare must respect. The MSA Legal Opinion transfers all risk away from the client, and ensures the client will not have to pay an additional dime above and beyond that amount recommended in the MSA Legal Opinion.
Some lawyers are general practitioners. Other lawyers focus their practice on a specific area of law, such as medical malpractice or motor vehicle accidents. Peter Drucker, a man celebrated by BusinessWeek magazine as “the man who invented management”, once said: "Do what you do best; outsource the rest." Most attorneys are good at what they do best. Protecting a client's future Medicare benefits is not likely their core competancy.
Cattie focuses its practice on protecting future Medicare benefits. Attorneys who hire Cattie for this narrow, but important part of their case know with confidence that they are receiving a highly detailed legal opinion which will remain in the client's file going forward. Just as the client relies on the conclusions rendered in the MSA Legal Opinion, the firm can also rely on those conclusions to the same extent. The MSA Legal Opinion transfers all risk away from the firm, and ensures the firm will not have to pay an additional dime above and beyond that amount recommended in the MSA Legal Opinion.
"We have to consider and protect Medicare's future interest." While those exact words do not come from any current enacted statute or regulation, we do not want to put Medicare in the position of paying future medical bills related to a settlement erroneously. Steps should be taken to make sure that those overpayments never occur. So long as they never occur, then no one runs afoul of the the MSP Act when it comes to future medicals.
So long as its advice is heeded, the MSA Legal Opinion ensures Medicare is not placed in that position. What better way to evidence that you have "considered and protected" Medicare's interests than to hire outside counsel to provide legal advice about the issue.