healthcare provider. Additional unknowns must also be addressed, such
as whether the plaintiff is expected to maintain his current health insurance,
or what the future costs of the needed procedures are anticipated to be. 94
D. Secondary-Payer Status of Public Insurance Programs
A further complication to the task of calculating claimants’ future out-of-
pocket expenses is that Medicare and Medicaid are entitled to recover their
future medical payments from claimants’ tort recoveries. 95 Medicare and
Medicaid by statute are secondary payers. 96 Secondary payers are only re-
quired to pay for care that is not paid for by other sources. 97 Furthermore,
secondary payers have a statutory right to be reimbursed by individuals they
covered who also received funds from other sources to pay for future care. 98
In 2011, the Centers for Medicare and Medicaid Services (CMS) stated that
Medicare intended to assert its right to reimbursement for future medical ex-
penses in liability cases.99 In 2012, CMS issued an Advanced Notice of Pro-
posed Rulemaking (ANPRM) seeking input on how Medicare should ensure
that it received the payments that it was due.100 Since then, the Office of Man-
agement and Budget has withdrawn the proposed regulation.101 However,
95. See Medicare Secondary Payer and “Future Medicals” 77 Fed. Reg. 35917, 35919
(June 15, 2012) (to be codified at 42 C.F.R. pts. 405, 411); Salvatore G. Rotella, Jr., Solving
the Medicaid Secondary Payment Puzzle, COMPLIANCE TODAY 32, 32-33 (August 2012),
96. See Medicare Secondary Payer, CTRS. FOR MEDICARE & MEDICAID SERVS.
Benefits-and-Recovery-Overview/Medicare-Secondary-Payer/Medicare-Secondary-Payer.html (last updated January 30, 2014).
97. See Medicare Secondary Payer for Providers, Physicians, Other Suppliers, and Billing Staff, DEP’T OF HEALTH & HUMAN SERVS. 1 (Feb. 2015), https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/
98. See Fagel, supra note 14, at 3 (stating a claimant on Medicare, for example, may be
required to establish a “Medicare Set-Aside Trust” from which Medicare can seek reimbursement for its future expenditures on behalf of the claimant. In the case of a Medicaid claimant,
compensation for future medical expenses from a settlement or jury award is placed in a Special Needs Trust so that the claimant can continue to qualify for Medicaid despite the recovery,
and if funds remain in the trust at time of the claimant’s death, Medicaid is entitled to obtain
reimbursement (via a lien) for medical expenses that it paid.); see also John J. Campbell, Preserving Public Benefits in Physical Injury Settlements: Special-Needs Trusts and Beyond, 2
NAELA J. 367, 374 (2006).
99. See 42 U.S. C. § 1395y(b)( 2) (2011) (Medicare law only provides for reimbursement
for future medical expenses specifically associated with workers compensation claims).
100. See Medicare Secondary-Payer and “Future Medicals,” 77 Fed. Reg. 35917, 35917
(June 15, 2012) (to be codified at 42 C.F.R. pts. 405, 411).
101. See Sara Hansard, CMS Withdraws Medicare Secondary Payer Proposed Rule,
MEDICARE REP. (Oct. 22, 2014), http://www.bna.com/cms-withdraws-medicare-