Medicare Set-Aside Blog on June 14, 2012
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Well, the Advanced Notice of Proposed Rulemaking is out and it is an interesting read. The proposed rules apply to future medicals in general and are not limited to liability as many speculated. There are seven options proposed: 1 – 4 applying to both beneficiaries and those with the “reasonable expectation,” and 5 – 7 applying only to beneficiaries. No one option satisfies all possible scenarios; therefore, it is assumed that more than one would be adopted if found to be feasible. The options are as follows:

Total honor system: individual pays for all related future medical until the settlement is exhausted and documents accordingly. No CMS review but it reserves the right to randomly audit records.
Liability settlements with no comp or no-fault coverage that are at least a year old and essentially resolved will not be pursued.
MSP recovery limited to CPL with physician attestation of no future anticipated treatment. If date of completion is after settlement, future medicals would limited through that date.
Current CMS review program extended to liability settlements.
If beneficiary participates in any of the new recovery options (settlement under $300, fixed payment or self-calculation), future medicals will also be considered satisfied.
Upfront payment options for ORM situations with CMS approval or liability settlements paying a specified percentage of net beneficiary proceeds.
No future obligations in cases where CMS granted compromise or waiver of recovery.

Unfortunately many of these options continue to involve the voluntary and unregulated CMS review program. It is the subjectiveness of that program that continues to be source of most MSA complaints and certainly is not a solution that I would support. Sure upfront payment options provide some much needed finality; however, the chance of greatly overfunding the risk continues with absolutely no chance of retaining a reversionary interest in those funds. Frankly, the most workable option is the total honor system if some additional notice provisions, provider education, and express ramifications for improper management of MSA funds were added.

If you were expecting a rant, don’t worry, it will be forthcoming. I am saving it for the public comment period. The public has until 5 pm of the 60th day after the proposed rules are published in the Federal Register to comment, which I highly encourage everyone with any role in this industry to do. While we certainly need a better solution than what we currently have, and some of these options have some merit, the only way to create a solution that meets everyone’s needs and concerns is to voice those issues before it is too late. Once it becomes a rule, it could take an act of Congress to fix it at that point. It is also important to note that public comments are permitted to be hand delivered directly to the Woodlawn office, with an appointment of course. If anyone ever wanted to see the inside of the mothership, this could be your opportunity.

The proposed rules be posted within the next few days here:

Or you can view the pre-publication version here.