In Haro v. Sebelius, putative class Plaintiffs, Medicare beneficiaries and an attorney representing the beneficiaries challenged the CMS program for reimbursement of Medicare conditional payments under the MSP and were rewarded for their efforts with a win against CMS in Arizona District Court. In times when CMS is broadly and according to some commentators, exceeding its authority when attempting to enforce the provisions of the Medicare Secondary Payer Act (MSP), it is refreshing to find an example of CMS being challenged. 
There has been a great deal of commentary from the liability industry concerning the necessity of liability Medicare Set-Aside (MSA) allocations under the Medicare Secondary Payer Act (MSP), and whether the published guidance applicable for workers’ compensation MSAs provides any insight regarding how liability MSAs should be handled. Although there is no statutory requirement to create an MSA when future medical expenses are awarded, it is recommended by the Centers for Medicare and Medicaid Services (CMS) and has become a best practice in workers’ compensation cases. In liability cases, resistance to MSAs continues due to a lack of published guidance and issues that are specific to liability cases. For example, if a settlement is only $100,000, and the projected MSA is $150,000, how can plaintiff’s attorneys get their fees if the entire settlement is taken up by an MSA?
A finalized settlement that includes a Medicare Set-Aside (MSA) where the parties have not yet obtained approval from the Centers for Medicare & Medicaid Services (CMS) can cause misunderstandings and complications, particularly on the part of claimants who are anxious to receive their settlement funds and may not understand the wait time associated with receiving CMS approval of the MSA. This was the issue that arose in Harrelson v. Arcadia, NO.2010 CA 1647, Court of Appeals of Louisiana, First Circuit.
On April 1, 2011, the Florida Bar issued Staff Opinion 30310. The opinion arose out of a dispute between opposing counsels in a personal injury lawsuit. The attorneys specifically sought the Florida Bar’s ethical opinion on whether an attorney, in a personal injury matter, “may personally sign a settlement release containing a hold harmless and indemnification agreement in favor of the opposing party which would obligate the plaintiff’s attorney to indemnify and hold harmless the defendant for any future liability under the Medicare Secondary Payer Act (MSP).”