News

CMS Announces Intention to Make Future Announcement Regarding LMSAs

Friday, December 7, 2018

By Marty Cassavoy

Yesterday CMS announced a notice entitled “Miscellaneous Medicare Secondary Payer Clarifications and Updates,” outlining an intention to release a new rule regarding Medicare Set Asides.  The announcement is short on specifics, but explained that the potential rule would provide beneficiaries with “the opportunity to select an option for meeting future medical obligations that fits their individual circumstances.”  The full text of the notice, which can be found here, is as follows

                “This proposed 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.”

Analysis

The announcement explains that the proposed rule could be unveiled as early as September 2019 and that it will impact post-settlement medical needs for all non-group health plan insurance types – including liability claims.  It has been over five years since Medicare last dipped its toe into the rulemaking waters with regard to regulating post-settlement medical treatment.  At that time Medicare published an Advanced Notice of Proposed Rulemaking on “Medicare Secondary Payer and Future Medicals.”  The prior announcement generated a tremendous backlash and, ultimately, CMS withdrew the notice of proposed rulemaking as untenable.

Since that ANPRM CMS has made several minor announcements expressing its intention to create policy regarding the treatment of post-settlement medical care in liability and workers’ compensation settlements.  Medicare awarded a contract to its Workers’ Compensation Review Contractor (WCRC) with the idea that the contractor would review liability set aside proposals as well as workers’ compensation Medicare Set Asides.  Medicare has confidentially met with industry trade groups and one of those trade groups released a summary of its meeting with CMS in August 2018.  These prior announcements have generated a lot of smoke, but little fire.

We can speculate as to what “options” may be announced when the proposed rule is unveiled later in 2019, but apart from the timing and insurance types impacted, the announcement is short on specifics.  The bottom line is that CMS has made similar announcements in the past but has yet to unveil any actual proposed regulations of any sort with regard to the post-settlement treatment of medical benefits; nor has it released any substantive policy with regard to liability set asides.  Of course, policies regarding workers’ compensation Medicare Set Asides have been around for over seventeen years and are well-known throughout the insurance industry.  In that regard, we will be curious to see the extent and impact of any proposed rules on workers’ compensation where Medicare policy is well-established.

ExamWorks Clinical Solutions will continue to closely monitor this CMS’ treatment of post-settlement medicals in all lines of insurance.  For further information or if you have any questions, contact ExamWorks Vice President of Medicare Compliance Marty Cassavoy at marty.cassavoy@examworks-cs.com or 781-517-8085.

About Marty Cassavoy

Marty Cassavoy is the Vice President of MSP Compliance at ExamWorks Clinical Solutions.  Marty and his team develop solutions to challenges in all areas of Medicare Secondary Payer compliance and across all insurance types.  An attorney licensed to practice law in Massachusetts, Marty works out of ExamWorks’ Woburn, Massachusetts office and can be reached at 781-517-8085 or marty.cassavoy@examworks-cs.com