Top 10 MSP-Related Events of 2011 – Number 3

Medicare Set-Aside Blog on January 11, 2012
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MSP Captured Congressional Attention

Although there have been MSP-related bills presented to Congress in years gone by, H.R. 4796 was the first to really capture its attention, despite having little chance of scoring. Whether due to the lobbying efforts of the MARC Coalition or it was just time for Congress to see what all the fuss was about, Congressman Pete Stark set into motion what turned into a very interesting 2011 for the MSP within the federal government. The GAO initiated a study at the beginning of 2011, requested by Stark on behalf of the Ways and Means’ Subcommittee on Health, to investigate the financial implications of H.R. 4796 and H.R. 2641 (a now defunct bill that, at the time, was in its third manifestation presented to three consecutive Congresses with no progress).  In March, H.R. 4796 was replaced by H.R. 1063 which amended the safe harbor provision to be adjusted annually by the CMS chief actuary to track the cost of recovery, which may permit the bill to score better. Then about midyear, Energy and Commerce developed an interest in the matter and held a hearing in July in which the CFO of CMS was left looking like a buffoon in her inability to answer questions about the financial implications of its recovery efforts. Finally last fall, the Senate introduced a companion bill, S.B. 1718, which gives the issue bipartisan support in both houses of Congress.

So where does that leave us?  The GAO report has not been release to Congress and until it is, it is unlikely that Congress will take any further action given that it cannot possibly understand the total dollars in play here. Energy & Commerce gave CMS clear directions to obtain specific information for which it will be called upon to report, indicating another hearing. Given that it is an election year, by the time the needed data becomes available, the existing bills may not see any action in this Congress, but that could be a good thing. The bills as they exist take very small steps in what needs to be a much greater total reform of the MSP efforts of the Medicare program in general. A new comprehensive bill proposed in the 113th Congress could not only make needed changes to conditional payment and reporting problems, but address resolution of MSA issues, apportionment (particularly in mass tort) and Medicare Advantage oversights not dealt with in the pending legislation.  As with everything else, this is a great start and 2012 remains promising.