• Is it just me or are we all thinking the same thing? Is this the beginning of mandatory MSAs in liability, no-fault, work comp claims?

    April 22, 2019 
    by Rafael Gonzalez, Esq.

    Late in 2018, our federal government announced in 2019 that it intends to regulate how and when to take Medicare’s future interests into account.

    Time may be up on “MSA not necessary” assumption
    You have heard it a million times: Medicare Set Asides (MSA) are not required. You have been told again and again, there is no law that requires submission of MSAs to the Centers for Medicare and Medicaid Services (CMS) for review and approval. Well, both of these statements may come to an abrupt end if, as announced, the federal government produces Code of Federal Regulations (CFR) to ensure that beneficiaries and payers meet future medical obligations under the Medicare Secondary Payer Act (MSP).

    Non-submit MSAs—likely triggering new regulations
    Involved in the MSP program since 1983, I had a feeling this moment was coming. And, as the industry’s appetite for non-submit MSAs has grown, I began to write and speak publicly about the potential that such behavior would, in fact, encourage or push the federal government into mandatory regulatory mode.

    Federal actions foretell changes ahead
    The latest announcement by the Executive Office of the President and the expected efforts HHS/CMS will undertake in 2019 and beyond certainly seem to indicate this will be the beginning of a new course for payers as well as current and anticipated Medicare beneficiaries. These federal actions may mandate the creation of MSAs in auto, liability, no-fault, and work comp claims, and possibly require submission of such MSAs to CMS for review and approval.

    No legal requirement to produce or submit MSAs, but…
    As we have learned since 2001, a current/potential Medicare beneficiary may, but is not legally required to, consider Medicare’s future interests by putting together an MSA and seeking CMS approval of the proposed MSA amount. The primary benefit for doing so has been the certainty of CMS reviewing and approving the proposed amount with respect to the sum that must be appropriately exhausted before Medicare becomes the primary payer for future claim related medical expenses.

    How we got here
    When the Medicare program was enacted in 1965, Medicare was the primary payer for all services, with the exception of those covered and payable by workers’ compensation. In 1980, Congress enacted the first of a series of provisions.....