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Medicare Set-Asides in Med-Mal and Personal Injury Litigation

By Barbara D. Goldberg

An issue that arises with increasing frequency in the context of medical malpractice and other personal injury settlements is whether, and to what extent, funds should be allocated from a settlement to provide for future medical costs that Medicare would otherwise be required to pay. The good news is that, contrary to popular belief, section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) does not require Medicare set-asides (MSAs) in the liability insurance context. See David J. Berg, “Medicare Set-Asides and Personal Injury Cases ' What Is the Practitioner to Do?” www.massbar.org/publications/section-review/2010v12-n2/medicare-.

Section 111 merely imposes requirements, under threat of substantial penalties, on “responsible reporting entities” (RREs) such as liability insurers and self-insured entities to report any settlement, judgment or other payment involving a claimant who may be entitled to Medicare to the Centers for Medicare and Medicaid Services (CMS).

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