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26 Health Law. 1 (2013-2014)

handle is hein.journals/healaw26 and id is 1 raw text is: H FEALI H Lo~AWYER, The Elephant in the Room: Under the Medicare Secondary Payer Act, When is it Necessary to Establish a Medicare Set-Aside Fund in Liability Cases? ........... 1 Chair's Column..................... 2 Who You Gonna Call? Competing/ Coordinating Roles of the Medical Staff Attorney and the Hospital Attorney ...... 10 State of the Section............. 17 The Fair Market Value Implications of Health Systems - Losing Money on Their Employed Physicians ........... 22 The Revival of the Responsible Corporate Officer Doctrine? ................ 32 Section Calendar.......Back Cover THE ELEPHANT IN THE ROOM: UNDER THE MEDICARE SECONDARY PAYER ACT, WHEN IS IT NECESSARY TO ESTABLISH A MEDICARE SET- ASIDE FUND IN LIABILITY CASES? William P. Morrow, JD 2013 Clerk, Honorable Donald Hebert Opelousa, LA When it comes to the settlement of cases involving a Medicare benefi- ciary, attorneys can be confused as to how to adequately consider Medi- care's interests and when to establish Medicare Set Aside (MSA) funds, especially in liability cases. The purpose of MSA funds is to provide funding to an injured worker in order to pay for future medical expenses that would otherwise be covered by Medicare. One of the biggest questions attorneys face when it comes to MSAs is determining whether or not it is necessary to estab- lish an MSA fund in liability cases in order to avoid the placement of a Medi- care lien on the settlement. Although there are laws directing attorneys to establish an MSA fund in workers' compensation cases, there are no laws specifically directing attorneys to estab- lish an MSA fund in liability cases. Rather, attorneys are merely left with memoranda from the Centers for Medi- care & Medicaid Services (CMS) for direction relating to liability MSAs (LMSAs). This article will outline the progres- sion of Medicare and MSAs, the current laws relating to Medicare, the Medicare Secondary Payer (MSP) Act, MSA funds, and the funds' purpose in workers' compensation and liability cases. The article will also address the arguments for and against MSAs in liability cases and whether or not an MSA fund in a liability suit is even necessary. The Progression of Medicare President Lyndon B. Johnson cre- ated the Medicare program when he signed into law the Social Security Act of 1965, which was an amendment to prior Social Security legislation.' Medi- care is a complicated federal program that is divided into four different groups: Part A-hospitals, Part B-medi- cal doctors, Part C-private health plans, and the most recent addition, Part D-prescription medications.2 Medicare does not pay for all medical services; however, it covers certain medical ser- vices and supplies in hospitals, doctors' offices, and other healthcare settings.' continued on page 3 Volume 26, Number 1, October 2013

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