The date for issuance of a proposed rule relating to Medicare Secondary Payer (MSP) obligations around post-settlement medical expenses has recently been updated to February, 2022. The revised notice can be found here. The updated abstract from the Office of Information and Regulatory Affairs (OIRA) reads as follows:
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. This proposed rule would also remove obsolete regulations.
It is speculated this forthcoming rule will apply to post-settlement considerations in liability claims, i.e., Liability Medicare Set Asides (LMSAs). Of note, however, the abstract also mentions all three Non-Group Health Plan (NGHP) types and an indication that obsolete regulations would be removed.
Interestingly, the following sentence was eliminated from the abstract in this iteration:
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.
Notwithstanding this, the substantive specifics related to obligations / responsibility (or any other aspect) is unknown.
As some may recall, the Centers for Medicare & Medicaid Services (CMS) has attempted to address LMSAs in the past. In 2012, rulemaking for LMSAs was initiated but the process was subsequently discontinued in 2014. Prior to that, two memos issued on the topic, including the May 25, 2011 “Stalcup Memo” out of the Dallas Regional Office, and a CMS memo dated September 29, 2011, which indicated when an LMSA was not necessary (when a treating physician certifies in writing that no further Medicare-covered treatment related to the injury has been completed as of the date of the settlement and that future treatment will not be required). In the solicitation and statement of work (SOW) for the Workers’ Compensation Review Contractor (WCRC) from 2016 and 2017, there was an indication that the contractor needed the ability to review LMSAs.
The instant proposed rule was initially announced in late 2018 and the release date has since been moved many times over the last three years. Only time will tell whether the rule will be officially issued for public comment and make its way through the rulemaking process.
Regardless, Ametros will be following it and the potential impact on and intersection with professional administration. Should you have any questions on this process, please reach out to Ametros.