H.R. 2649 Update
On March 7, 2016, H.R. 2649: Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2015 found itself a new co-sponsor. Representative John Larson of Connecticut joined the ranks of congressmen that now know what a Medicare set-aside is and don’t care that there is no legal requirement to participate in the voluntary CMS program that the legislation attempts to fix. That makes five cosponsors in total now, 3 Republicans and 2 Democrats, true bipartisan support. With the bill still “in committee” and the election cycle in full swing, this new found support will surely push this legislation forward before the term ends. The sixth try is always the best.
Seriously though, the solution to the flawed CMS WCMSA approval program is to simply not participate when not in your best interests. There is no express statutory obligation to protect Medicare’s interests but there are obligations to not allow Medicare to make payments that a primary payer is responsible for and to make reimbursement if it does. Therefore responsibility is the driver so look to your state work comp laws to dictate what your future obligations look like, not CMS. If the industry were to take responsibility for this, we could negate the purpose of the WCRC and end this problem more efficiently than trying to pass legislation that perpetuates the problem. Unfortunately if Oklahoma opt out is an example of employers acting in good faith in the absence of legislation, then I guess I’m dreaming.