Here is an interesting little tidbit floating around the blogosphere from Attorney Andy Hook. This sounds like a plausible response by a CMS employee but one that contradicts the carefully crafted non-statements CMS has become so fond of with respect to liability settlements and the need for Medicare Set-Aside Arrangements.
Take this piece of information for what it’s worth.
October 16, 2009
On March 19, 2009, a member of the Special Needs Alliance, Thomas D. Begley Jr., wrote to the CMS General Counsel for Region 3, Philadelphia, asking three questions:
Does CMS require a Medicare Set-Aside Arrangement (MSA) in third party liability cases, if Plaintiff is receiving Medicare or expected to receive Medicare in 30 months?
Will CMS review a calculation for an MSA in a third party liability case, if it is submitted similar to the procedure currently being employed in worker’s comp cases?
If the answer to his question as to whether an MSA is required in a third party liability case is “yes,” then in the absence of guidance for third party liability cases, is a personal injury attorney safe in following the guidance that has been issued for worker’s compensation cases?
On September 2, 2009, Tom spoke with Sean Emberson, Health Insurance Specialist in the Philadelphia Office of CMS. Mr. Emberson was authorized by the office of General Counsel to respond verbally to Tom’s letter. His response is as follows:
CMS does require an MSA in third party liability cases, if Plaintiff is receiving Medicare or expected to receive Medicare in 30 months.
CMS will review a calculation for an MSA in a third party liability case if it is submitted similar to the procedure currently employed in worker’s comp cases. The review process generally takes from 30 to 60 days. It can be longer if one of the two specialists assigned to review these cases is assigned to travel or otherwise out of the office for any reason. CMS will respond in writing after reviewing the submission.
The guidance provided in worker’s compensation cases should be followed for third party liability cases.
Tom asked Mr. Emberson about this letter sent by Tom Bosserman of the San Francisco Region to Sally Hart of the Center for Medicare Advocacy in 2002. That letter indicated that it was CMS policy not to require a set-aside in a liability case absent a specific allocation in a settlement or judgment for future medicals. Mr. Emberson responded that letter was outdated.
The Philadelphia Region covers Delaware, District of Columbia, Maryland, Pennsylvania, Virginia and West Virginia for third party liability cases. For worker’s compensation cases the Region includes, Delaware, District of Columbia, Florida, Maryland, New Jersey, Pennsylvania, Tennessee, Virginia and West Virginia. The state of residence of the Medicare beneficiary or potential controls rather than the state in which the lawsuit was brought.
Tom also contacted the New York Region which covers New York, Puerto Rico, Virginia Islands, and New Jersey for Medicare Set-Asides and liability cases. He spoke with Patricia Elston, Health Insurance Specialist. Ms. Elston’s answers were essentially the same. CMS does require Medicare Set-Asides in third party liability cases. She also indicated that the New York Region will review a Medicare Set-Aside proposal and issue a written response after reviewing the submission and that the guidance provided in worker’s compensation cases should be followed for third party liability cases.
Both Regions indicated that, due to manpower shortages, they were not aggressively enforcing the MSPA but that those who ignored the law did so at their peril.
Oast & Hook
Posted by Andy Hook on October 16, 2009
Medicare Set-Aside Allocation/Arrangement Recommendations
Submissions to Centers for Medicare and Medicaid Services
Pharmacy Benefit Management