CMS-6047-ANPRM: Medicare Program; Medicare Secondary Payer and “Future Medicals”

Uncategorized on June 29, 2012
Posted by Louis Jordan

On June 15th, an Advance Notice of Proposed Rulemaking was published in the Federal Register providing a variety of options that CMS is considering making available to beneficiaries and other individuals affected by the Medicare Secondary Payer Act (MSP) on how they might protect Medicare’s interest with respect to settling their claims.

The proposed options clearly encompass all claims that contain a potential future medical component, including liability claims. The discussion went so far as to point out that outside of the workers’ compensation arena, “…obligations … have been long ignored or overlooked.” The implication is CMS will no longer be ignoring or overlooking these obligations.

The general rule proposed spells out that if an individual obtains a settlement and anticipates receiving medical care after the settlement that would otherwise be covered by Medicare, then that person is required to satisfy Medicare’s interest using one of the following options. (Note options 1-4 are open to both Medicare beneficiaries and individuals who are not beneficiaries at the time of settlement. Options 5-7 are only available to Medicare beneficiaries.)

1) The individual pays for all future related medical care until the settlement is exhausted. He or she is required to document these payments, but Medicare won’t require documentation except periodically on an audit basis.

2) No payments are required if the settlement is a liability settlement of an undefined value and if the injury occurred one or more years before the settlement or the beneficiary is not and will not become a Medicare beneficiary within 30 months and is not chronic or a major trauma. Also, there can be no additional settlements or related workers’ compensation or no-fault insurance claims.

3) The individual acquires confirmation from the treating physician that the care has been completed. The Date of Care Completion could come before or after the settlement. Medicare would have the right to pursue recovery of any related conditional payments through the Date of Care Completion.

4) The individual submits an MSA for review to CMS. This option just expands the current workers’ compensation program to liability.

5) Prepayment of future medicals when the settlement is a liability settlement of $25,000 or less with several calculation options based on the dollar amount of the settlement. These options became available earlier this year as a way to obtain a final demand letter for any conditional payments owed prior to settlement, but this was only available for conditional payments made prior to settlement. This option would expand these recovery methods to future medical payments as well.

6) Prepayment of a CMS-approved MSA for workers’ compensation and no-fault insurance settlements. For liability settlements, the prepayment would be an unspecified percentage of the proceeds after procurement costs and conditional payment reimbursements.

7) If CMS grants the beneficiary a compromise or waiver of recovery, then it may (although there is no requirement) choose to not pursue future medicals related to the settlement.

There are almost as many issues with these options as with the current review program itself. The number one issue being that many of these grant broad discretion to CMS to continue to operate as it sees fit. For example, any of the options that include CMS review do not address the fundamental issues with the review program itself.

Nevertheless, the attempt by CMS to make rules providing direction to the industry gives everyone affected by this law a chance to comment and to improve on the current situation. We highly encourage everyone to comment during the comment period which lasts until August 14, 2012. You can read the rule at and submit a comment there as well.


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