|
Since the workers' compensation settlement is closing the employer's
obligation to pay future medical expense, the claimant is eligible for
Medicare and the settlement is $25,000 or more, it falls within the threshold
set forth by Medicare in its April
25, 2006 CMS memo, for cases
where the claimant is currently eligible for Medicare. Thus, approval
of the settlement by Medicare is required unless it falls within an exception.
In its memo
dated April 22, 2003, CMS established an exception to the
general rule that set-asides be created to protect Medicare's interests.
It is not necessary for the parties to establish a set-aside arrangement
for Medicare if all of the following criteria are met:
1. The facts of the case demonstrate that the injured individual
is only being compensated for past medical expenses ( i.e., for
services furnished prior to the settlement).
2. There is no evidence
that the individual is attempting to maximize the other aspects of
the settlement ( e.g., the lost wages and
disability portions of the settlement) to Medicare's detriment.
3.
The individual's treating physicians conclude (in writing) that,
to a reasonable degree of medical certainty, the individual will
no longer require any Medicare-covered treatments related to the
workers' compensation injury. See
the April 22, 2003 CMS memo, Q&A
20.
The language of this exception is cause for concern because it
gives CMS a basis to reject the settlement if it determines that
the settlement was made to Medicare's detriment. Thus, the use
of this exception should be made with the recognition that there is
risk that CMS might challenge the settlement despite a perceived
compliance with the policy statement.
|
