Regulatory Can Kicked Again: But Are We Getting Closer?

July 1, 2020

Nineteen months ago Medicare announced plans to introduce important new regulations concerning post-settlement medical care. This week Medicare updated the announcement to better define the scope of the proposal. The new language provides more specifics and suggests a broad regulation that resets the boundaries of Medicare Set Asides in liability and workers’ compensation claims.

The full text of the notice, found here, is as follows:

This proposed rule would clarify existing Medicare Secondary Payer (MSP) obligations associated with future medical items services related to liability insurance (including self-insurance), no fault insurance, and worker’s compensation settlements, judgments, awards, or other payments.  Specifically, this rule would clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services related to such settlements, judgments, awards, or other payments.  This proposed rule would also remove obsolete regulations.

What does this mean?

This announcement replaces prior language which promised “options” to ensure that beneficiaries were making the best “choices regarding their future medical care expenses.” Now, Medicare promises that the proposed language will “clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services” related to a workers’ compensation, liability, or no fault settlement.

No longer discussing “options” to ensure that beneficiaries are making the best “choices,” CMS now stresses that “individuals or Medicare beneficiaries” must act. Existing Federal policy directs settling workers’ compensation claimants to “take Medicare’s interest with respect to future medicals into account.”  The announcement about the proposed rule goes further, stressing that individuals and Medicare beneficiaries receiving “liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements must satisfy Medicare’s interest.”  Merely considering Medicare’s interest, and perhaps determining that no interest exists, may not be enough.

Any regulation addressing post-settlement medical in workers’ compensation and liability claims could have wide-ranging impacts in personal injury litigation.  Those impacts, and the unintended consequence of any such regulations, are perhaps why no substantive steps have been taken to regulate these activities.  Speculation about the content of any proposed rule, and the timeline for any regulations, is premature.  Medicare has adjusted the language describing the proposed rule three times now, with no publication forthcoming.

The proposed rule could be released as soon as August 2020. We are not holding our breath.  Regulating post-settlement medical activity has been on CMS’ radar since 2012.  In the last eight years we have seen advanced notices of proposed rulemaking, withdrawn proposals, updated regulatory agendas, and several changes to the timeline and language in CMS’ announcement about future liability regulations.

ExamWorks Compliance Solutions will continue to closely monitor this CMS’ treatment of post-settlement medicals in all lines of insurance.  For further information or if you have any questions, contact ExamWorks Vice President of Medicare Compliance Marty Cassavoy at or 781-517-8085.

Marty Cassavoy

Marty Cassavoy

Marty Cassavoy is the Sr. Vice President of MSP Compliance and Business Development at ExamWorks Compliance Solutions. Marty and his team develop solutions for challenges in all areas of Medicare Secondary Payer compliance and across all insurance types. An attorney licensed to practice law in Massachusetts, Marty works out of ExamWorks’ Woburn, Massachusetts office and can be reached at 781-517-8085 or