Avoiding The Unnecessary MSA: Obtaining An Opinion Letter

by: Thomas D. Begley, Jr.

Since the advent of Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007, defendants and defense counsel are more vigorous in ensuring that all Medicare liens are paid in full from settlement proceeds and that a Medicare Set Aside Arrangement (MSA) is established where required. Unfortunately, since this area is new, many defense counsel are requiring MSAs in third party liability cases, even in instances where none is required. To avoid the establishment of an unnecessary MSA, the Begley Law Group assists plaintiffs’ personal injury firms by providing written Opinion Letters in appropriate cases stating that an MSA is not required.
To be eligible for Medicare a person must be:

• Aged 65 or older and eligible for either Social Security or Railroad Retirement Benefits1;

• Aged 65 or older and were employees of state or local governments hired afer March 31, 1986; 2

• Under Age 65 and receiving Social Security Disability or Railroad Retirement Disability Benefits for 24 months3 (For persons suffering from Amyotrophic Lateral Sclerosis (ALS), there is no 24-month waiting period. There is no waiting period for adult children with disabilities.);

• Persons under age 65 with “end stage renal disease”;4

No Medicare Set Aside Arrangement is required, unless the plaintiff is receiving Medicare or has a reasonable expectation of receiving Medicare within 30 months. A person is deemed to have a reasonable expectation of receiving Medicare within 30 months if:
• they are receiving SSDI;
• they have applied for SSDI;
• they are appealing an SSDI denial; or
• they suffer from End Stage Renal Disease.

To be eligible for SSDI a person must be disabled within the meaning of the Social Security Act and receive a Determination of Disability from the Social Security Administration. One of the elements in determining disability is whether the individual is capable of performing substantial gainful activity (SGA). For 2010, SGA means the inability of that person to earn at least $1,000 per month in the workplace.

1) 42 C.F.R. § 406.10. 2) 42 C.F.R. § 406.11. 3) 42 C.F.R. § 406.12. 4) 42 C.F.R. § 1395( c); 42 C.F.R. § 406.13.

Quick Screen

To evaluate whether you or a family member could benefit from a Medicare Set Aside Arrangement, click on this link to complete a brief questionnaire.

The Begley Law Group is pleased to render an written opinion as to whether a Medicare Set Aside Arrangement is required in any given case. Please contact the Begley Law Group at 509 S. Lenola Road, Building 7, Moorestown, New Jersey 08057, Phone: (856) 235-8501, Email: [email protected]