Ringler Medicare Solutions makes a Prediction

Medicare Set-Aside Blog on September 27, 2010
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The following is an excerpt of an email sent from David Hays at the start-up Ringler Medicare Solutions to Ringler’s broker staff on September 23, 2010.

“Everyone wants to know what is happening with liability MSA’s.  We were told this week by CMS that it is their intention to follow the WC reporting thresholds for liability cases and that they do intend to get liability guidelines out to everyone during the 4th Quarter of 2010.  Some of the Regional Offices are already reviewing liability MSA’s”. 

MEDVAL Comment:

1. When he states “we were told by CMS” he means they were told by some employee at the Regional office. Unless it comes from Barbara Wright or Gerald Walters in a public forum it should not be relied upon. See prior MEDVAL blog post “Bosserman Pontificates”.

2. What are WC reporting thresholds? I assume he means WC review thresholds which are different from mandatory MSP reporting thresholds. Regardless, I doubt CMS, given their staffing constraints has any intention of following WC review thresholds. Right now Philadelphia is applying a $250,000 threshold to LMSAs, will not consider a $0 (why not?) and only will review cases concerning a Medicare beneficiary.

3. Although possible, it is pretty unlikely CMS will release any formal memos concerning liability cases by 2010. If they do, I would expect it to be a vague reminder that liability cases are part of the MSP and that Medicare’s interests should be protected in those situations. They may even go so far as to publish the aforementioned review threshold. I can guarantee it will not clarify the often asked “do I need an MSA on a liability case”. CMS knows it does not have the legislative authority to issue such a proclamation. Regardless, it will keep me busy for days interpreting the guidance to the questions CMS purports to answer.

4. “Some of the Regional Offices are already reviewing liability MSAs”. I interpret this statement as some sort of justification for the LMSA. Of course CMS would like to review LMSAs. But what benefit is to be gained unless such a review is predicated on extinguishing MSP liability?

I am not sure how I feel about a “liability memo”. If it looks anything like the Frankenstein created under the WC program, I would prefer to operate in the current environment. At least now, common sense and reasonable business practices take precedence over “CMS memos”. But it would be nice if CMS would confirm what we have been saying all along. The obligation to protect Medicare’s interests is the same in a WC or liability claim. And that an MSA is one way, but not the only way, to ensure compliance with the MSP.

Whether or not either of these predictions come true is of no particular relevance. Making CMS predictions is fun for those of us in the business, but CMS has proven very independent minded when it comes to issuing memos. The goal is and always will be to take whatever guidance they choose to promulgate and find solutions for complying with the MSP without creating unnecessary financial burdens for the settling parties.