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received in connection with this settlement. As part of this settlement, Plaintiff agrees to indemnify, defend, and hold [Defendant] harmless against and from any such Medicare reimbursement claims. (Te author is grateful for this suggested release language provided by the Garretson Firm Resolution Group, www.garretsonfirm.com. )


Tis release language is a recommendation provided by a


firm who specializes in aiding other law firms in the Medicare lien resolution process. While there is no statutory or case law support for this language, it has been used by them in multiple settlements and has provided multiple Defendants with the assurances needed to release funds to the Plaintiff in the face of these new issues.


Myth #3: This new statute requires set- asides for liability settlements for the purpose of satisfying Medicare liens


For those of you who are unfamiliar with the term “set


aside,” it refers to funds from settlements or verdicts which must be set aside to cover future medical damages. Te parsing of this money relieves Medicare of its responsibility for paying claim-related medical bills which are incurred after the settlement or verdict. Set asides have been a regular


part of worker’s compensation claims for years. Despite what defendants might tout, at the present time there are no specific provisions, statutes, or memoranda from CMS requiring a Medicare set-aside in liability settlements. Section 111 of the Medicare, Medicaid & SCHIP Act of 2007 (MMSEA) is at the center of this hotly contested debate. As previously discussed, this new statutory language strictly deals with reporting requirements. Section 111 simply completes the statutory loop which was begun on December 5, 1980, when Medicare’s conditional payment rights were acknowledged. Tis loop was continued in 2003 in Section 301 of the Medicare Modernization Act (referenced above) when enforcement provisions were placed on Medicare beneficiaries and plaintiff attorneys. Now this loop has been closed with Section 111 which institutes a reporting obligation on self insured defendants and/or carriers. Nowhere, in any of this, does it state that anything has changed regarding set asides and liability claims. Medicare has made several unofficial statements


addressing the issue of set-asides in liability claims during town hall teleconferences. One such statement was that “the new statutory language changes nothing as it pertains to the status quo with set-asides of liability or worker’s


Trial Reporter / Summer 2010 17


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