CMS Document SE17019 Reissued; The Effect This Document Has On Your MSA

CMS, Liability, Medicare Set-Aside Blog, MSP News on November 16, 2017 | Posted by Jennifer Alvarez, JD, RN, MSCC, CMSP

As we continue to monitor for guidance from the Centers for Medicare & Medicaid Services (CMS) regarding Medicare Secondary Payer (MSP) compliance and liability/no-fault insurance claims, we have noted a couple of recent changes.  First, on 10/27/17, the CMS Manual System was revised with transmittal 1954 [1], which addressed New Common Working File Medicare Secondary Payer Type for Liability Medicare Set-Aside Arrangements and No-Fault Medicare Set-Aside Arrangements; of note, the revision included the removal of the provider education requirement.

Most recently, changes were made to MLN Matters Number SE17019 (SE17019). Initially, SE17019 was issued on 09/19/17 and addressed physicians’, providers’ and suppliers’ acceptance of payment for services from a patient’s Liability Insurance Medicare Set-Aside Arrangement (LMSA), No-Fault Insurance Medicare Set-Aside Arrangement (NFMSA), or Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA).  The intended purpose of the article was to teach medical providers how to determine whether they should bill Medicare or a patient’s MSA.  SE17019 was subsequently rescinded on 10/03/17; however, on 11/08/17, it was reissued [2]  to clarify information that included:

  • The article title was revised to Accepting Payment from Patients with a Medicare Set-Aside Arrangement. There is no longer any specific reference to a WCMSA, LMSA, or NFMSA; instead, the term “Medicare Set-Aside Arrangement (MSA)” is utilized.
  • Statutory references and descriptions involving liability insurance, no-fault insurance and workers’ compensation insurance have been deleted, along with discussion of CMS’ formal review process regarding WCMSAs.
  • The article indicates that, before the receipt of care for which payment is to be made from the MSA, health care providers are to be advised by Medicare beneficiaries that an MSA exists. The health care provider should bill the Medicare beneficiary directly and charges for treatment should be paid from the MSA if “the treatment or prescription is related to what was claimed or the settlement, judgment, award, or other payment had the effect of releasing, AND the treatment or prescription is something Medicare would cover.” The emphasized section represents a change in verbiage from the prior language. Careful consideration should be given to the wording of release language (especially the use of general release language), as it is the discharge from medical responsibility that gives rise to MSP accountability.

Additionally, as we previously reported, per the Request for Proposal for a CMS Review Contractor, the Contractor (WCRC) was potentially to begin reviewing LMSAs and NFMSAs as early as July 1, 2018; however, the WCRC award was subsequently protested. Given the protest, we question whether this will affect the timing and ability of the WCRC to begin reviewing LMSAs and NFMSAs by July 1, 2018.  Certainly, the removal of the wording of LMSAs and NFMSAs from the recent SE17019 CMS article has us also questioning whether CMS is just not ready to expand the review process, and whether CMS is focusing on educating stakeholders at this time. Interestingly, we have noticed various postings for WCRC nurse reviewers and we wonder whether this is simply part of the transition process from one WCRC to the next, or is in anticipation of an increase in MSAs submitted to CMS for review – to include LMSAs and NFMSAs. Despite no significant or definitive news regarding LMSA and NFMSA processes, all the signs continue to point to the same conclusion: MSP compliance should be considered with the resolution of liability and no-fault insurance claims.  We will continue to keep you updated on any important changes. MEDVAL is committed to helping you put the proper protections in place to achieve MSP compliance, so please contact us at info@medval.com, if we may be of service to you regarding your Liability, No-Fault, or Workers’ Compensation claims.

[1] https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2017Downloads/R1954OTN.pdf

[2] https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/downloads/SE17019.pdf