Medicare Secondary Payer & “Future Medicals”: GRG Submits Comments to CMS

9/18/2012

Over the past several weeks you’ve received a series of Alerts from Garretson Resolution Group (“GRG”) on the subject of Medicare Secondary Payer (“MSP”) and future medicals in liability settlements. On June 14, 2012, the Centers for Medicare & Medicaid Services (“CMS”) filed an Advance Notice of Proposed Rulemaking (“ANPRM”). This document solicited comments on standardized options that CMS is considering implementing to enable “beneficiaries and their representatives” to “meet their obligations to protect Medicare’s interest” with respect to future medicals in liability settlements (including self-insurance). The comment period has now ended, as of August 14, 2012.

The purpose of this Client Alert is twofold: 1) to announce that GRG has submitted its comments to CMS in response to the ANPRM; and 2) to talk about how GRG’s Medicare Set-Aside (“MSA”) Decision Engine provides GRG clients with the ready-built platform to ensure MSA compliance on files today as well as in the future – no matter what regulations CMS formally implements – so that you will feel zero effect on your business. We invite you to review our comments to CMS in response to the ANPRM. You can review our comments in their entirety here. We also invite you to take the MSA Decision Engine for a test drive so you can witness firsthand how this state of the art compliance tool will address your MSA questions simply, quickly and cost-effectively.

Comments to CMS

Our comments to the ANPRM begin by noting that CMS’s proposed rules must clearly articulate how the following three issues will work operationally:

  1. When do future medicals need to be addressed under the MSP Act?
  2. How much needs to be “set-aside” to satisfy that obligation?
  3. What should occur after determining that amount?

More specifically, we commented on how CMS can address those three issues in the Proposed Regulations in order to provide clarity.

In our comments relative to when future medicals need to be addressed under the MSP Act, we noted that a threshold screening should be performed to determine whether the individual/beneficiary possesses the proper characteristics making them a candidate for an MSA. Absent the right characteristics (which include proper Medicare enrollment status and a need for future Medicare covered injury-related care), an individual/beneficiary should be able to easily address the obligation by memorializing what factor is not present, eliminating them from the MSA requirement.

Next, we commented at length about the need to determine that a future medical allocation exists within the gross award. Recognizing this has always been difficult under the current construct, we recommended that CMS adopt a standardized future medical allocation methodology under any Proposed Regulations which fully recognizes the inherent differences between workers’ compensation and liability matters. Absent such standard allocation methodology, we noted that disbursements would be frozen and CMS regional offices would face gridlock. In order to determine how to calculate the future medical allocation, we recommended CMS look to factors such as costs of procurement, out of pocket expenses, state statutory caps, loss of earning capacity and loss of household services. Only by taking such factors into account would CMS be able to ensure stakeholders are provided uniformity and finality on the issue of future medicals.

Finally, we included comments on what should occur after determining the future medical allocation. Fully understanding the scope and magnitude of the situation, we recommended that the allocation methodology be self-actuating, predictable and allow for finality. Allowing individuals/beneficiaries access to logic/methodology “certified” by CMS in the area of future medical allocation would ensure compliance but bridge the resource constraints currently experienced by CMS. With a scalable, objective process at their fingertips and with assurance from CMS that such allocation complies with the MSP provisions, individuals/beneficiaries would have the finality they need to be able to agree to settle a case knowing their future Medicare benefits are protected.

To read our full comments, click here. You can also read the full notice from CMS regarding Medicare Secondary Payer obligations and future medical care here.

What to Expect from GRG?

Without doubt, the options and related processes ultimately implemented by CMS must allow for scale, efficiency, and practicality. Our comments asserted a collective voice for these key attributes based on the feedback you provided. Now come the next steps.

CMS will review the comments it receives and move toward promulgating rules and regulations in this area. THE TIME IS NOW to implement a formalized approach to MSA compliance inside your firm. Are you asking the proper questions at case intake? Do you have a process you can rely upon to ensure compliance in this constantly changing area? Please contact the GRG Medicare Set-Aside Team at (888) 556-7526 or lienresolution@garretsongroup.com to take the first step by asking for a demonstration of the MSA Decision Engine.

GRG will continue to monitor all guidance from CMS in order to update our MSA decision-making methodology. Whether you engage GRG for a traditional MSA Evaluation letter, or utilize our “self-service” MSA Decision Engine technology-based service, you can rest assured your case will comply with current statutes, regulations and case law. You can learn more about GRG’s MSA services, including our MSA Decision Engine, on our website.

If you have not already done so, please contact us to discuss how we can establish a formalized approach to MSA compliance within your firm.