In the past, it was unclear if Medicare Advantage Plans (MAPs) had recovery rights under MSP. MAPs would issue lien demands claiming that they had recovery rights under the Medicare Secondary Payer Act (MSP) in an effort to obtain reimbursement of payments made by the MAP. Due to the ambiguity surrounding MAPs recovery rights, primary payers would yield to the demands of MAPs to avoid a Federal cause of action by the MAP for recovery before satisfying other lien holders. However, an increasing recent amount of case law is depicting a trend that MAPs do not have direct recovery rights under the MSP in Federal court, and that MAPs must pursue reimbursement of payments in State court just like other traditional lien holders. This holding was brought about again in the case of In Re Avandia Marketing, 2011 U.S. Dist. LEXIS 63544, United States District Court, Eastern District of Pennsylvania.
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?
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).”