Does CMS require that a Medicare Set-aside be established in situations that involve both a workers compensation and a liability claim?
A30. Yes. To the extent that a liability settlement relieves a workers’ compensation carrier from any future medical or prescription drug expenses, a CMS approved Medicare Set-aside is appropriate. “Relief” could come in the form of a full and final settlement of the workers’ compensation claim or a moratorium on future workers’ compensation until the liability proceeds are exhausted. This Medicare Set-aside would need sufficient funds to cover future medical and prescription drug related expenses incurred once the total liability settlement (less procurement costs of the judgment e.g., attorney fees and costs is exhausted. There may be exceptions to this rule. Establishing a Medicare Set-aside would not be necessary if it can be medically documented that the injured party does not require any further medical services or prescription drug therapy. However, a Medicare Set-aside would still be appropriate even where the resolution of the workers’ compensation claim permanently closes the
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