In a notice posted June 8, 2016, the Centers for Medicare and Medicaid Services (CMS) stated it will consider expanding its voluntary MSA review process to include the review of proposed liability and no-fault insurance MSA amounts.

As you may recall, this topic has come up before.  In 2012, CMS published an Advanced Notice of Public Rulemaking (ANPRM) on Medicare Secondary Payer and “Future Medicals” (CMS 6047-P) in response to affected parties’ requests for guidance on future medicals and MSP obligations. At the time, it was thought that CMS would begin reviewing liability Medicare Set-Aside arrangements (MSAs) in the same formal process that they use for workers’ compensation cases.  However, the ANPRM was withdrawn in October 2014 by the Office of Management and Budget.

The June 8 notice confirms that CMS is still considering implementing a review process for liability Medicare Set-Aside arrangements.  The agency expects to schedule town hall meetings on this topic later this year.

Notably, CMS’ position with regard to considering Medicare’s future interest in a liability setting has remained consistent.  The law requires that the Medicare Trust Funds be protected from payment for future services when a settlement, judgment or award provides funds for those future services.  Although the term “Medicare set-aside” does not exist in any statute or regulation, the MSA arrangement has become the industry standard and CMS’ method of choice for protecting the Medicare Trust.

It is difficult to predict if and when CMS will implement a formalized review process for liability Medicare-Set Aside arrangements.  In the meantime, plaintiff attorneys need to decide on a case-by-case basis if there is a need to protect the Medicare Trust, and if so, whether a comprehensive Medicare Set-Aside analysis (i.e. a review of medical records to project future treatment and prescriptions) is appropriate.

S3 will continue to monitor this ever-evolving issue, and, as always, help our clients ensure their cases comply with current Medicare statutes and regulations.

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