A bill seeking reform with respect to MSPMedicare Secondary Payer Act compliance in workers’ compensation settlements was recently introduced in the House of Representatives. The bill is titled Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012, also known as H.R. 5284. Proponents for the bill claim to have already garnered large support from insurance industry representatives, attorneys, and a broad based coalition of employers.
This bill is not to be confused with the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 (Strengthening Medicare and Repaying Taxpayers) Act of 2011, also known as H.R. 1063, which seeks reform of the MSPMedicare Secondary Payer Act, but only with respect to Medicare conditional payments and Mandatory Insurer Reporting pursuant to the MMSEAMedicare Medicaid and SCHIP Extension Act and does not address MSAsMedicare Set-Asides. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 has been pending in Congress since early 2011.
H.R. 5284 seeks to legislatively reform delays and inconsistencies in the WCMSAWorkers' Compensation Medicare Set-Aside system, stating that a legislative solution is necessary to correct CMSCenters for Medicare and Medicaid Services’ informal WCMSAWorkers' Compensation Medicare Set-Aside review process. A likely obstacle that H.R. 5284 will face is that the WCMSAWorkers' Compensation Medicare Set-Aside system was created through CMSCenters for Medicare and Medicaid Services memoranda and procedure, and not through formal legislation. The MSPMedicare Secondary Payer Act as well as the CFRCode of Federal Regulations do not specifically address MSAsMedicare Set-Asides; therefore, to legislatively fix the system when it is not formally legislated may pose a problem.
Additionally, the bill seeks to exempt workers’ compensation settlements under $25,000 from compliance with the Medicare Secondary Payer Act, which would mean no conditional payment reimbursement, no MSAMedicare Set-Aside requirement, and no reporting. Such an exemption would limit Medicare’s potential recoveries and could affect the bill’s scoring. There is also a proposal within the bill which would allow for the WCMSAWorkers' Compensation Medicare Set-Aside amount to be paid directly to CMSCenters for Medicare and Medicaid Services. Such a proposal would certainly ease the burdens of self-administration of WCMSAs upon claimants. A copy of the bill can be found here. This piece of legislation was previously introduced in 2009; the 2012 version is very similar to the 2009 version and has relatively minor changes.
PMSI is in favor of any efforts which will further protect the rights of Medicare beneficiaries, the Medicare Trust Fund, and primary payers; however H.R. 5284 will likely face some obstacles from the outset. Additionally, supporters of both the H.R. 5284 as well as the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will have to be patient during this election year when Congress may be more inactive than in non-election years. Hopefully, both H.R. 5284 as well as the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will at least raise the attention of Congress to create some reform with respect to the MSPMedicare Secondary Payer Act system which has vastly changed the landscape of settlements with Medicare beneficiaries. A recent GAOGovernment Accountability Office Study on the MSPMedicare Secondary Payer Act system and suggested reforms should also shed some light. To read our prior blog on the GAOGovernment Accountability Office Study, click here.
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