H.R. 5730 – Legislation that Might Actually Help Prepare More Consistent MSAs

Medicare Set-Aside Blog on May 23, 2012 | Posted by


As I continue to take heat for my criticisms of the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012, I did mange to find some Medicare legislation that I do think would be helpful in actually preparing MSAs. H.R. 5284 really doesn’t address the biggest problems in MSAs and that is how the allocation amounts are calculated and CMS’ inconsistent appellation of whatever policies are truly in play. The CMS approval process is primarily subjective and we can’t solve that with an appeal to the same agency granted automatic deference that its opinions are the correct application of the MSP. But due to lack of regulation, an MSA may also vary by preparer when there should only truly be one outcome. Because CMS refuses to disclose the unredacted operating guidelines given to WCRC for how it is to evaluate a submission, WCMSAs in general will continue to suffer by some variable in favor of CMS as those that go the other way will be countered higher.

One high dollar variable is the surgical calculation. Although CMS requires a surgical worksheet be submitted along with WCMSA proposals, its contractor continues in its independent review to use fixed numbers for certain surgeries no matter what jurisdiction the claims lies. Many who have caught on to that practice play CMS’ game and regularly submit proposals for approval using those generic numbers with the knowledge that CMS agrees to pick up anything in excess of its approved amount. But not everyone gets the benefit of the government’s short comings. Cases that are under threshold or intentionally elect to forego CMS approval need to justify their allocations for surgeries and reasonably be able to believe that a claimant could secure surgery at that price. Hence why I think H.R. 5730 will help level the playing field a little.

Medicare Payment Rate Disclosure Act of 2012 will amend title XVIII of the Social Security Act to make publicly available on the official Medicare Internet site medicare payment rates for frequently reimbursed hospital inpatient procedures, hospital outpatient procedures, and physicians’ services. Medicare reimbursement rates for at least the 100 most frequently paid hospital inpatient and outpatient procedures and physician services will be publicly available and accessible by zip code. If we all have access to the same pricing that is actually representative of Medicare’s exposure for those services, insures will fund more realistic figures and claimants may receive a little more equal treatment.Of course how likely is it that CMS would actually let us use those published rates???

Click here for the text of the legislation.