Update: Proposed Rulemaking to Clarify Existing MSP Obligations

CMS, Medicare Set-Aside Blog, Medicare Set-Asides, MSAs, MSP News on July 1, 2020
Posted by Jean S. Goldstein, JD, CMSP

We continue to monitor guidance from the Centers for Medicare & Medicaid Service (CMS) regarding Medicare Secondary Payer (MSP) compliance as related to workers’ compensation, liability, and no-fault insurance claims.  As we often discuss here on our blog, CMS continues to place emphasis on satisfying MSP obligations.  You may recall that in December 2018, CMS added an advanced notice of proposed rulemaking (ANPRM) to the Unified Agenda of Federal Regulatory and Deregulatory Actions, involving a rule to address satisfying MSP obligations.  The Unified Agenda is published in both the Spring and Fall.  Interestingly, the Spring agenda was published, with some noteworthy changes to the ANPRM regarding MSP obligations, and contains two significant changes and updates.  The ANPRM can be found here.  By comparison, the updated sections of the ANRPMs are listed below:

Fall 2019 ANPRM:


This proposed rule would ensure that beneficiaries are making the best healthcare 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.

Spring 2020 ANPRM:


This proposed rule would clarify existing Medicare Secondary Payer (MSP) obligations associated with future medical items services related to liability insurance (including self-insurance), no-fault insurance, and worker’s compensation settlements, judgments, awards, or other payments.  Specifically, this rule would clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services related to such settlements, judgments, awards, or other payments.  This proposed rule would also remove obsolete regulations.

Most have speculated that the proposed rule will address three main items:

  1. Liability Medicare Set-Asides, and perhaps the creation of a voluntary review program;
  2. The voluntary nature of submission and approval of Medicare Set-Asides by CMS/the CMS Contractor; and most significantly
  3. The all-encompassing requirement to satisfy Medicare’s interest and MSP obligations.

However, this notice seems to place some additional emphasis on the individual/Medicare beneficiary to satisfy Medicare’s interest, and thus may also bring some additional much-needed focus to post-settlement administration.  As we know, CMS has continued to indicate that professional administration is highly recommended, as first noted by CMS in 2017. 

Since this notice was first issued in 2018, we have been excitedly awaiting the proposed rule to determine the impact on claims; yet we have seen consistent delays and once again, the due date for the release of the proposed rule has been extended to next month, August 2020.  It is certainly anyone’s guess with much of CMS’ focus rightfully being on COVID-19 whether we will see a proposed rule issued next month.  However, the rule continues to be prioritized as economically significant, meaning it meets one of the following criteria:

  1. Has an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
  2. Creates a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
  3. Materially alters the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
  4. Raises novel legal or policy issues.

We will be sure to update our readers on the release of the proposed rule or other significant changes.