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CMS Withdraws MSP Future Medicals Rule: No Regulations – is it Good News?

The Centers for Medicare & Medicaid Services (CMS) has officially withdrawn their Notice of Proposed Rulemaking (NPRM) for protecting Medicare’s future interests with respect to future medicals. The NPRM was originally submitted to the Office of Management and Budget (OMB) back in August 2013. With the NPRM, it was anticipated CMS was going to establish formal regulations for liability Medicare set asides (MSAs).  CMS first brought this matter to light with the Advanced Notice of Proposed Rulemaking (ANPRM) proposals in May 2012. Before that, the agency had only issued one formal memorandum back in September of 2011

The ANPRM was a series of ideas and suggestions for how to protect Medicare’s interests when future medical care was claimed as part of a settlement, award or judgment for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation. You can read Synergy’s CEO, Jason Lazarus’ initial commentary from 2012 by clicking HERE.  There was a 60 day commentary period where CMS invited remarks from the Medicare secondary payer (MSP) industry. To read Synergy’s commentary regarding the ANPRM click HERE.  According to the agency, CMS took all of the ideas/recommendations into account when they submitted the NPRM to the OMB. The next step was going to be establishing formal guidelines for protecting Medicare’s interests with respect to future medical care.

Synergy engaged CMS directly with a framework for how to address protecting Medicare’s future interests on liability claims in our commentary on the ANPRM. Synergy will continue to work with CMS to make sure any future regulations are appropriate for stakeholders. If promulgated changes are going to occur with respect to protecting Medicare’s future interests, Synergy will be the voice of reason on behalf of injury victims and plaintiff attorneys.

With the withdrawal of NPRM, comes a collective sigh of relief from plaintiff attorneys. However, this does not change the current Medicare secondary payer landscape. Attorneys still need to consider Medicare’s future interests when resolving claims. CMS can deny treatment for Medicare beneficiaries who require accident related care post-settlement. Since the Medicare trust fund is losing millions of dollars every year, we fully anticipate CMS to revisit these issues again in the near future. Although, MSA’s are never required by any regulation or statue, the MSP still requires the Medicare trust fund be protected (according to CMS).

Medicare has issued guidance in the past in the form of memos.  As you may be aware, they issued a memorandum back in September of 2011 detailing an exception of when a Medicare set aside wasn’t necessary in a liability settlement.  This memo was issued by the Baltimore HQ.  The fact that they told everyone when one isn’t necessary reinforces the fact that they believe they are necessary regardless of whether there is a formal regulation issued or not.  They have been routine and common place in comp since 2001 without any real regulations.  It is all policy memoranda driven.  Until CMS comes out publicly and says don’t worry about any of this, we would still be concerned about clients who are Medicare beneficiaries and receive money towards future medicals.   

If you have a client who is a current Medicare beneficiary that is going to require future, accident related care and there are funds earmarked towards future medical treatment, a Medicare set aside should still be a consideration. However, there are numerous ways to deal with Medicare secondary payer compliance to ensure both your firm, as well as your clients are protected. So our suggested course of action remains the same:  Consult, Advise and Document (“CAD”).  Consult competent experts such as those at Synergy.  Advise the client regarding potential implications if they are a Medicare beneficiary and receive money for future medicals.  Document your file regarding what you did. 

At Synergy, we have the solutions that will help you settle cases compliantly for Medicare beneficiaries. 

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