On Tuesday, March 13, 2012, the Western District of Louisiana heard arguments regarding a potential Liability Medicare Set-Aside (“LMSA”). The argument was brought to the court on the “Motion for Determination of Need for, and the Amount of Medicare Set Aside.”
While the court heard testimony from Plaintiff Warren Frank’s treating physician and his pharmacist, it did not appear to take into account background on the legality of LMSAs. CMS provided a two paragraph response to the invitation for it to participate:
“CMS [The Centers for Medicare and Medicaid Services] does not review or verify counsel’s determination of whether or not there is a recovery for future medical services or counsel’s determination of the amount to be held to protect the Medicare Trust Fund except under limited circumstances.
“In this particular matter, CMS would neither participate or review the parties’ determination of whether a set aside was needed or the amount of the set-aside.”
The Court also cited Bradley v. Sibelius in its review while discussing CMS was given that chance to appear at the MSA hearing. It also cites Bradley to show that CMS’s manual is not entitled to Chevron (admin law) deference.
The Court’s Findings of Fact
Here is where things get interesting and possibly make this case much less important. Finding of Fact #1 noted the injury occurred “in a workplace accident…[Frank] was employed by Ranch Supply and was unloading merchandise off of a trailer.” So – the underlying case is a workers’ compensation case with a liability case component (his injury occurred when he stepped in a hole in the trailer). This means we aren’t actually looking at apure LMSA.
Within Finding of Fact #6, the court also noted (in a pure LMSA context), “CMS does note currently require or approve Medicare Set Asides when personal injury lawsuits are settled.”
What does it mean for LMSAs?
This is just another case to add to the research pot. Obviously, we question its applicability to the LMSA argument based on the workers’ compensation component; however, it is technically an LMSA. More important is the Court’s response to CMS’s refusal to attend. The Court will not allow CMS to be defiant in the case of unsettled law.
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