On June 14, CMSCenters for Medicare and Medicaid Services, through the DHHSDepartment of Health and Human Services, issued an ANPRMAdvance Notice of Proposed Rulemaking regarding “Medicare Secondary Payer and Future Medicals.” The industry will have until 5 PM of the 60th day after the proposed rules are published (Monday, August 13th) to comment on these proposed rules. A copy of the Notice can be found here:
CMSCenters for Medicare and Medicaid Services has essentially provided seven (7) different future medical options to the industry, as well as invited additional options to be proposed to CMSCenters for Medicare and Medicaid Services during the comment period. The majority of these options pertain to liability settlements; however, a great deal of the options would also be applicable in workers’ compensation settlements. It is important to note that options 1-4 pertain to current Medicare beneficiaries as well as those who are not yet beneficiaries. Options 5-7 are only available to beneficiaries.
Option 1 (applicable in workers’ compensation or liability): The Medicare beneficiary or individual pays for all related future medical until the settlement is exhausted and documents accordingly. CMSCenters for Medicare and Medicaid Services would not review documentation in conjunction with this option but may request documentation from beneficiaries at random.
Option 2: Medicare would not pursue future medicals in liability settlements that contain no workers’ compensation/no-fault claim element and the settlement is below a defined amount. CMSCenters for Medicare and Medicaid Services is seeking commentary on what that amount should be.
Option 3 (applicable in workers’ compensation or liability): MSPMedicare Secondary Payer Act recovery is limited to conditional payments only if the beneficiary acquires a physician attestation that no future treatment is anticipated. If the date of completion is after settlement, future medicals would be limited through that date.
Option 4: Implement a formal MSAMedicare Set-Aside and CMSCenters for Medicare and Medicaid Services approval process for liability insurance MSAMedicare Set-Aside amounts, similar to what is currently in place for workers’ compensation. The “individual/beneficiary” would submit the proposed MSAMedicare Set-Aside to CMSCenters for Medicare and Medicaid Services.
Option 5: If the beneficiary participates in any of the new MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments conditional payment recovery options (settlement under $300- no recovery, settlement under $5,000- fixed percentage payment, or settlement under $25,000- self-calculation of payment), future medicals would also be considered satisfied.
Option 6: (a) If ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) is present (which would apply generally to workers’ compensation, no-fault and lifetime medicals that are imposed by law) CMSCenters for Medicare and Medicaid Services would take an upfront payment of the future medical amount that is set aside for Medicare covered treatment. This option would be used in place of self-administration or custodial accounts as long as CMSCenters for Medicare and Medicaid Services has reviewed and approved a proposed MSAMedicare Set-Aside amount. (b) Where there is no ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) and the beneficiary receives a settlement, an upfront payment can be made to Medicare in the amount of a specified percentage. This option would most often apply in liability situations.
Option 7: Medicare would not pursue future medicals in cases where CMSCenters for Medicare and Medicaid Services has granted compromise or waiver of recovery for conditional payments in relation to that case.
This ANPRMAdvance Notice of Proposed Rulemaking is likely in response to the GAOGovernment Accountability Office Report in which the GAOGovernment Accountability Office recommended that CMSCenters for Medicare and Medicaid Services develop guidance regarding liability and no-fault set aside arrangements, in addition to other recommendations to make the MSPMedicare Secondary Payer Act system run more efficiently. Click here for our prior blog entry on the GAOGovernment Accountability Office Report.
PMSI will continue to monitor the progress of this ANPRMAdvance Notice of Proposed Rulemaking. We certainly welcome your comments and suggestions on the viability of these options and any other options that you feel would clarify the issue of how future medicals are to be handled in workers’ compensation and liability settlements.
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