Epic Game of Kick the Can Regarding LMSAs Comes to an End: CMS 0, Stakeholder Community 2

October 14, 2022

Yesterday, the Office of Information and Regulatory Affairs (OIRA) at the White House’s Office of Management and Budget (OMB) issued notice that the Center for Medicare and Medicaid Services’ (CMS) proposed rule titled “Medicare Secondary Payer and Future Medicals” has been withdrawn by the agency.

 If this all feels like déjà vu to you, you are not alone. This big win for many Medicare Secondary Payer (MSP) stakeholders comes a full decade following another CMS’ first abortive attempt at outlining guidance for Liability Medicare Set-Aside allocations (LMSAs). Please recall, CMS made a prior effort to address future medicals in liability settlements which began with the publication of an Advanced Notice of Public Rulemaking (ANPRM) in the Federal Register on July 15, 2012. Public comment to the ANPRM was solicited and received followed by CMS submitting a Notice of Proposed Rule Making to the federal Office of Management and Budget (OMB) for publication. However, the Proposed Rule was never published and CMS withdrew the ANPRM without comment on October 8, 2014 after must push back from the MSP stakeholder community.

 Fast forward to 2016. The specific text of the proposed rule at issue here, first hinted at by CMS in 2016, was never released publicly. However, given the general descriptions of the rule released over the last 6 years, it is commonly believed the proposed rule contained first time guidance for Liability and No-Fault Medicare Set-Aside allocations (MSAs) along with tweaks to the 21-year-old voluntary Workers’ Compensation MSA review program. Ultimately, CMS’ withdrawal of the rule is welcome news and cause for celebration for many.

ExamWorks Compliance Solutions (ECS) has been following developments with respect to this notice all 6 years and keeping you up-to-date all along the way. See below for links to our prior blog posts on this topic. We will continue monitor any actions CMS may take in the MSP realm, including around trying to regulate or provide any guidance around Liability MSAs.

If you have any questions about MSP matters, including Liability, No-Fault, and Workers’ Compensation MSAs, please reach out to Annie M. Davidson via email at annie.davidson@examworkscompliance.com or via phone at 651-262-9618.

Annie M. Davidson

Annie M. Davidson

Annie M. Davidson is the Senior MSP Compliance Counsel and Policy Strategist for ECS. In her role, Annie provides legal analysis to ensure the integrity and quality of ECS’ Medicare Secondary Payer (MSP) compliance services and related products. Prior to joining ECS, Annie practiced as an insurance defense attorney in her native Minnesota where she litigated workers’ compensation and liability insurance cases, particularly those involving MSP issues. She is admitted to practice law in the State of Minnesota and the United States District Court for Minnesota, and is a graduate of William Mitchell College of Law. Annie can be reached at annie.davidson@examworkscompliance.com or at 651-262-9618.