Medicare Set Aside Trusts 

April 12, 2022

In addition to the “subrogation” issues that may affect your claim which were discussed in our December 28, 2021 blog, you also need to be aware that if you are Medicare beneficiary or have a reasonable expectation of becoming one within thirty (30) months of the time of your settlement, the amount that you ultimately recover may be affected by the Medicare Secondary Payer (MSP) statute. The MSP provides that if a primary payer exists (the medical provider who injured you) Medicare only pays for medical treatment relating to your injury to the extent that the primary payer (the medical provider who injured you) does not pay. This means that if you make a recovery in your medical malpractice action, and Medicare has actually paid all or a portion of your medical bills, you will be required to pay Medicare back for the bills that they have paid. In addition to past medical bills you may also be making a claim for future medical care to treat the injuries you received. Because the government is only a secondary payer, Medicare wants to make sure that you use the funds from your settlement ore verdict that are allocated towards future medical expenses to treat you for your injuries before Medicare takes over. Because of this, you may be required to establish a Medicare Set Aside Trust which requires you to hold a portion of your settlement proceeds in a trust to pay for your future medical expenses. Medicare Set-Aside laws are extremely complicated, are continuing to change, and no one can predict with absolute certainty at this time how the Medicare Set Aside requirements may change in the future. For that reason, it is important that you understand how these requirements may affect your settlement so that you are not surprised at the end of the process if the establishment of such a trust becomes necessary.