The Centers’ for Medicare & Medicaid Services (CMS) released another notice indicating potential regulations for future medicals, i.e. Medicare Set Asides (MSA).
By way of background, going back to 2018, CMS issued an initial notice of anticipated rulemaking around future medicals, which has been widely speculated to address liability claims. Subsequently, in 2019, the dates for issuing proposed rules were extended several times. Prior to the most recent notice, they were extended to February, 2020.
The most recent notice provides an anticipated release date of “08/00/2020”. The language in each of the abstracts has been altered in each issuance. A review of each is immediately below:
Fall 2018 Abstract Language |
Stated Release Date |
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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. See link here. |
09/00/2019 |
Fall 2019 Abstract Language |
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| 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. See link here. |
02/00/2020 |
Spring 2020 Abstract Language |
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| 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. (emphasis added. See link here.) |
08/00/2020 |
Of note, the following language has been added to the Spring 2020 Abstract:
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.
It appears the intent would be to place the obligation on an individual claimant / plaintiff to satisfy obligations around future medicals. If this is the case, it will be critical for an individual to properly administer their funds to ensure there’s no interruption in treatment or adverse issues relating to denial of service. Professional administration is essential in ensuring proper handling and compliance with respect to managing funds for future medicals.
Open Issues & Questions
Timing
- As with past notices, anticipated dates for issuing proposed rules were extended several times. With respect to the most recent notice, it is unclear if in fact proposed rules will be issued in August.
Substance
- While it is anticipated the proposed rules will address liability claims and formally codify Liability Medicare Set Asides (MSAs), the abstract language covers, “liability insurance (including self-insurance), no fault insurance, and worker’s compensation settlements.”
- In the most recent notice, it is further indicated that, “[t]his proposed rule would also remove obsolete regulations.”
- Thus, it is unclear if the proposed rules would address future medicals in all areas of non-group health plan (NGHP) coverage, i.e. workers’ compensation, liability and no-fault.
- Moreover, it is unclear if the regulations upon which workers’ compensation Medicare Set Asides (WCMSA) are established, i.e. 42 CFR 411.46 and 42 CFR 411.47 would be affected.
In the interim, many stakeholders in the industry continue waiting in anticipation of potential proposed rules addressing future medicals. Should you have any questions about these or how professional administration may play a role, please do not hesitate to contact us.
how long would it take for to PROPOSED rule to become official. Would it go through some sort of public comments before becoming official? How long is normally the time before the proposal is issued and it becomes official? Before it becomes official — the settled plaintiff and their attorneys should not worry about FUTURE medical bills and worry about setting MSA accounts — is it a correct statement?
Thanks for this question. The proposed rules in this instances have not yet issued. If and when they issue, to your point, they’ll be subject to a public comment period where the general public may submit a written response. Depending on the agency, they’ll specify a public comment period typically ranging from 30 to 60 days. To the second part of your question, there are many factors to consider when resolving liability claims that implicate post-settlement medical expenses. I don’t think it is a situation where the parties can completely disregard Medicare’s interests altogether, based upon CMS’s historical stance, as outlined in the article. Again, there are many fact and situational elements which should be considered and balanced on a case-by-case basis. I’m happy to discuss further with you and will reach out directly.