Some Workers' Compensation Courts Recognize the Importance of Considering Medicare's Potential Interests in Every Case

Medicare Secondary Payer Act compliance has become such a commonplace concern that some courts recognize the need to consider this issue in every workers' compensation claim that settles. A prime example of this is Nebraska's workers' compensation court, which requires, pursuant to Rule 47(B)(12) of its rules of procedure, that every application identify whether the claimant is a Medicare beneficiary, is eligible for Medicare, or has a reasonable expectation of becoming eligible for Medicare within 30 months of the settlement's execution. The rule further provides that if the claimant has a reasonable expectation of becoming a Medicare beneficiary within 30 months, the application should further identify the date of expected Medicare eligibility. If the claimant is actually a Medicare beneficiary at the time of the settlement's execution, the application must acknowledge the status of conditional payment claims research and that the employer will be responsible for Medicare's asserted, related claims.

 

This blanket approach to evaluate Medicare's potential interest in every case is laudable, and we encourage defendants to approach their settlements in this way (even if the governing court does not mandate that an application include this language). We would further encourage the parties to consider the use of a Medicare Set-aside in those cases with Medicare beneficiaries (or with claimants who have a reasonable expectation of becoming a beneficiary within 30 months of settlement). Of course, a Medicare Set-aside's calculation and creation depends upon a number of factors. We welcome the chance to assist parties with their analysis of these issues, regardless of whether it is on a case-by-case basis or whether it is in the development of consistent, internal procedures and policies.