CMS Adds a Proposed Rule – Will it Affect Your Workers’ Compensation and Liability Claims?

CMS, Medicare Set-Asides, MSP News on December 10, 2018
Posted by Jean S. Goldstein, JD, CMSP

The Centers for Medicare & Medicaid Services (CMS) recently added an item to the Unified Agenda, which may have an impact on your claims.  The Unified Agenda of Federal Regulatory and Deregulatory actions is a semiannual compilation of information about regulations under development by federal agencies published in the spring and fall.  The item added by CMS is a proposed rule with respect to satisfying Medicare Secondary Payer obligations.  The notice and an abstract of the rule may be found here on the Office of Information and Regulatory Affairs Office of Management and Budget site.  As noted on the site, the proposed rule, while not available for review yet, is noted as both being “major” and “economically significant.”  The abstract provides a glimpse as to the proposed purpose of the rule, and states that the

“…rule would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. Currently, Medicare does not provide its beneficiaries with guidance to help them make choices regarding their future medical care expenses when they receive automobile and liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or payments, and need to satisfy their Medicare Secondary Payer (MSP) obligations.” (Emphasis added.)

The notice also refers back to 0938-AR43, which you may recall was the previously proposed rule from 2012 issued with the purpose of implementing regulations with respect to Medicare Secondary Payer obligations and future medicals.  With this 2012 proposed regulation, a Notice of Proposed Rulemaking (“NPRM”), was released, but not published, and ultimately withdrawn.

Takeaway and Commentary:

What is perhaps most interesting about this proposed rule is that workers’ compensation settlements are also included in the abstract.  Currently the method by which CMS provides guidance regarding future medical Medicare covered obligations as related to workers’ compensation claims is through the issuance of memos, and the most commonly referenced document, CMS’ Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide, which is updated periodically.  The WCMSA reference guide is the resource utilized for CMS’ voluntary review program for WCMSAs.  However, the memos, and guide, are just guidance, and there are currently no issued legal standards for WCMSAs.  Essentially, CMS’ voluntary review program for WCMSAs is unregulated, despite of course being well-known by those in the industry.  CMS certainly defers to the WCMSA reference guide, and memos, requiring that those who choose to utilize the WCMSA review program comply with all policies and procedures as set forth by CMS in its memos/guide.  However, the 2018 proposed rule may outline the options in a formal regulated manner as to when and how meeting future obligations and compliance should be attained.  Currently, parties have discretion for determining the best and most reasonable manner by which to meet MSP obligations.  Although, CMS has through memos and guidance, indicated that a Medicare Set-Aside is the preferred vehicle by which to address MSP obligations.

There has also been much recent chatter about expansion of a voluntary review program for liability Medicare Set-Asides (LMSAs).  You may recall our recent posts that addressed the various notices from CMS, including the Workers’ Compensation Review Contractor’s Request for Proposal and recent open dialogues between the MSP stakeholder community and CMS.  Despite the recent hype surrounding LMSAs, there have been no formalized procedures or processes announced for review of LMSAs.  Therefore, based upon this recent proposed rule, we can speculate that CMS either believes that the Memos and current guidance as issued with respect to WCMSAs are either insufficient, and/or CMS wishes to promulgate formal regulations for both WCMSAs and LMSAs.  However, until a formal rule is issued, there is no foreseeable impact on liability or workers’ compensation claims.  Once the text of the proposed rule is available, we will post it here on our blog.