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26 Health Law. 1 (2013-2014)

handle is hein.journals/healaw26 and id is 1 raw text is: H FEALI

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


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

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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