Changes are forthcoming in the law for Medicare Set-Asides (MSAs) in liability cases. Just what those changes are have not been determined as of yet.      

Recently, Advanced Notice of Proposed Rulemaking has been promulgated by CMS for public comment. There are seven (7) proposed options as to how Medicare beneficiaries and their attorneys can meet their obligations to protect Medicare’s interest when future medical care is claimed or the settlement, judgment, award, or other payment releases (or has the effect of releasing) claims for future medical care. 
 
Options “1” through “4” apply to both Medicare beneficiaries and those with the “reasonable expectation” of becoming a Medicare beneficiary. Options “5” through “7” apply only to Medicare beneficiaries.  
 
If an individual or Medicare beneficiary obtains a “settlement” and has received, reasonably anticipates receiving, or should have reasonably anticipated receiving Medicare covered and otherwise reimbursable items and services after the date of “settlement,” he or she is required to satisfy Medicare’s interest with respect to “future medicals” related to his or her “settlement” using any one of the following options. 
A brief summary of those options are as follows:   
 
  • Option 1.   The individual/beneficiary acquires/provides an attestation regarding the Date of Care Completion from his/her treating physician. (Attestation Option).
  • Option 2.   Medicare would not pursue “future medicals” if the individual/beneficiary’s case fits all of the conditions under several criteria. (This would mirror the rules for Workers’ Compensation Medicate Set-Asides).
  • Option 3.  The individual/beneficiary pays for all related future medical care until his/her settlement is exhausted and documents it accordingly (“Good faith” Option).
  • Option 4.   The Individual/Beneficiary Submits Proposed Medicare Set-Aside Arrangement (MSA) Amounts for CMS’ Review and Obtains Approval.
  • Option 5.      The beneficiary participates in one of Medicare’s recovery options:
    • $300 Threshold, 
    • Fixed Payment Option, or 
    • Self-Calculated Conditional Payment Option.
  • Option 6.         The Beneficiary Makes an Upfront Payment.
  • Option 7.         The Beneficiary Obtains a Compromise or Waiver of Recovery.
 
A link to the proposed text of the proposed rulemaking for public comments on various options that beneficiaries and their attorneys will be able to resolve MSP obligations related to settlement, judgments, awards, or other payments involving future medical care while protecting Medicare’s interests can be found as follows: CMS Proposed Rule Change 6.17.2012. Further details pertaining to these various options are contained in this document.
  
It should also be noted that the proposed options lack any reference to liability and/or control by the Defendants, their insurers, or self-insurers. The proposed options imply that the responsibility for MSAs will be between Plaintiffs/Plaintiffs’ attorneys and CMS.
 
The bottom line is that some form of regulation regarding MSAs in liability cases will be incorporated into the Code of Federal Regulations. Only time will tell as to what exactly what those regulations will be. But, nonetheless, regulations are coming.
 
We will continue to keep you advised as to further updates in this area.