June 15th, 2012
Douglas L. Shaw, C.P.A.,
C.M.A,CMSP
Chief Operating Officer
An Advanced Notice of Public Rule
making (ANPRM), CMS-6047-ANPRM, from the Centers for Medicare and Medicaid
Services (CMS) was published in the July 15, 2012 Federal Register. This notice is likely a response by CMS to
numerous requests for guidance that clarifies how to resolve obligations
regarding "future medicals" in liability settlements under the
Medicare Secondary Payer(MSP) statute.
Since 2001, CMS has a recommended
a formal, yet voluntary, Medicare set-aside (MSA) arrangement for workers' compensation
settlements to satisfy obligations under the MSP statute. According to a recent Government Accountability
Office report, the MSA program saved the Medicare Trust Fund approximately
$1.1B in 2011.
CMS is now soliciting public comment
on whether and how Medicare should implement a similar process for liability
insurance settlements. In addition, CMS
is requesting comment on some proposed definitions and outlined options. Their goal is to "ensure that the
process related to 'future medicals' is understandable, efficient, and reflects
industry practice, while protecting Medicare beneficiaries and the Medicare
Trust Funds."
Medicare is considering seven options
for addressing "future medicals".
Options 1-4 would be available to Medicare beneficiaries and those who
are not yet beneficiaries. Options 5-7
would be available to beneficiaries only.
1. The beneficiary pays for future medicals
out of the settlement funds, until exhausted, with random CMS audits.
2. Medicare would not pursue future medicals
if certain conditions are met including relating to the amount of the
settlement, the type of injury, the injured persons Medicare status, etc.
3. The injured person provides an attestation regarding
the Date of Care Completion from his/her treating physician.
4. The individual/beneficiary submits a Liability
MSA for CMS' review and approval.
5. The beneficiary participates in one of the three
new Medicare recovery options regarding a $300 threshold, a fixed payment option
or $25,000 or less self-payment option.
6. The beneficiary makes an upfront payment to
Medicare.
7. The beneficiary obtains a compromise or waiver
of recovery and Medicare would have the discretion to not pursue future medicals.
CMS is requesting comment on the feasibility of
all of these options, as well as any additional options. Comments must be received within 60 days. It
is anticipated that the next step, after reviewing comments from this ANPRM,
will be for CMS to publish proposed regulations, which will prompt another
public comment before becoming final. A
flood of comments from a host of interested parties is expected.
