CMS Submitted a Proposed Rule for Liability Medicare Set-asides

Heads up personal injury attorneys, it looks like the Centers for Medicare and Medicaid Services (CMS) may be coming for your liability cases. Read on and contact our team to learn more about the proposed new rule for Liability Medicare Set-Asides that CMS has submitted.

What is the new rule CMS has proposed for liability Medicare set-asides?   

In March 2022, CMS submitted a proposed rule on the Medicare Secondary Payer and Future Medicals to the White House Office of Information and Regulatory Affairs for review before it is released for a public comment period. The widely held belief is that the proposed rule will create a Medicare Set-Aside (MSA) process for personal injury, liability, and no-fault cases similar to the current process for workers’ compensation cases.

CMS has unsuccessfully attempted to set guidelines for Liability MSAs in the past. Back in 2012, CMS submitted advance notice of proposed rulemaking addressing future medical costs in liability cases, but after the public comment period, CMS failed to move forward with the proposed rule change.

Fast forward to 2018 and the White House issued notice that CMS planned to issue a notice of a proposed rule addressing future medical costs in liability insurance, no-fault and workers’ compensation cases. Now some 4 years later, it appears that CMS has finally drafted the proposed rule.

    So, what happens once the proposed new rule on liability Medicare set-asides is issued?

Once CMS issues the proposed rule there will be a comment period where the public will have time (typically 60 days) to submit a commentary response to the proposal. From there CMS will review and consider the comments in order to formulate the final version of the regulation and its implementation.

There is speculation as to exactly what CMS will propose. There are questions regarding which party will be responsible for complying with the new regulation; what types of claims will be included; any monetary thresholds; and of course, how will CMS account for such things as comparative fault and policy limits.

There is also the question of how this process would be implemented? Will CMS establish a review and approval process and what rules will be established regarding the calculation of future medical costs and allocations, funding and the administration of the set-aside funds?

If comments submitted back in 2012 are any indication, there will be questions regarding CMS’ statutory authority to regulate future medical costs for liability claims without Congress first amending the Medicare secondary payer statute. However, CMS may take the approach it did with its recent guidance regarding the use of non-CMS-approved products to address future medical care in workers’ compensation matters.

CMS could take the position that if a set-aside account is not provided for and approved in connection with a liability case, then Medicare will not cover the costs of medical treatment related to the liability injury until such time as the entire settlement is exhausted. Thus, forcing plaintiffs to insist upon a CMS-approved Medicare Set-Aside before agreeing to a settlement.

Contact MSA Meds

Whatever CMS has in store for personal injury, liability, and no-fault cases, MSA Meds stands ready to assist the plaintiffs’ bar and their clients in navigating through these untested waters and to provide the injured party with the assurance that any required Medicare Set-Aside funds are properly administered. Contact MSA Meds today.