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Tuesday, May 24, 2011

Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim

Following the guidelines of the CMS Management Memo entitled "Medicare Secondary Payer - Workers Compensation (WC) Information" dated May 7, 2004, and the interpretation of 42 CFR 411.37, a NJ Court granted an attorney the deduction of procurement costs from a Medicare Set-Aside Trust.

"This court's decision to apply 42 C.F.R. § 411.37 to funds obtained in a civil action and placed in a Medicare set aside is also in line with general principles of equity. Where a plaintiff is, or will within a short time become, a Medicare recipient, the plaintiff's attorney also works on behalf of Medicare to secure funds to pay future medical expenses Medicare would otherwise pay. To allow Medicare to avoid paying an equitable share of the procurement fees for a judgment or settlement amount, forcing the plaintiff to cover all the fees, would be unfair to plaintiffs. In some situations, a plaintiff may end up getting nothing after creating the set aside and paying attorneys' fees or may even have to pay money out of pocket to his attorney after a lengthy trial. Such a result would not only be inequitable, it would deter persons on Medicare who are injured by the tortious acts of others from bringing claims."

Hinsinger v. Showboat Atlantic City, L-3460-07, 2011 WL 1885980 (NJ Super Law Division 2011), decided May 19, 2011.