Involving a Medicare Set Aside (MSA) in a liability case requires careful consideration of Medicare's interests. The Centers for Medicare and Medicaid Services (CMS) have maintained that Medicare’s interests should be taken into account when resolving liability claims.
Historical Context and Guidance
- Important Memos and Calls: Since the 2001 “Patel Memo,” there have been varying interpretations regarding MSAs in liability cases. Key documents, like the May 25, 2011 “Stalcup” memo, emphasize considering Medicare’s interests.
- Rulemaking and Reviews: CMS initiated a rulemaking process in 2012, though it paused in 2014. Subsequent updates have been anchored around the Workers' Compensation Review Contractor’s (WCRC) ability to review Liability Medicare Set Asides (LMSAs).
- Future Regulations: CMS issued a notice in 2018 for anticipated rulemaking on future medicals. Speculation suggests this could address LMSAs, but proposed rule issuance has been extended several times, most recently to August 2020.
Considerations in Liability Cases
In the absence of firm regulations, liability cases need a tailored approach:
- Case-by-Case Analysis: Analyze the potential cost-shift to Medicare and the plaintiff's Medicare status.
- Risk-Management Philosophy: The payer’s risk management strategies and the parties' philosophies play a crucial role in decision-making.
Looking Ahead
As the industry awaits final CMS rulemaking, stakeholders should remain vigilant about updates in the legislation affecting LMSAs.
For more detailed guidance on Medicare Set Asides, review the WCMSA Reference Guide.
