Liability MSAs on the Horizon. Will they or won’t they?







If you feel like CMS is treating Liability Medicare Set-Asides like a Sitcom love story, you’re not alone. Like the transition to ICD-10 and the implementation of Mandatory Insurer Reporting, the “will they or won’t they” of LMSAs is years in the making. CMS gave us a great cliffhanger recently when the new MSA Review Contractor was announced. And then: poof. Just like that, it rescinded guidance on October 3, 2017.

The next season of CMS’s LMSAs is here. And it’s trending back toward they will. CMS reissued MLN Matters SE17019 on November 8, 2017. Like its predecessors it serves one goal, to teach providers that Medicare is secondary:

The obligation to protect the Medicare trust funds exists regardless of whether or not there is a formal CMS approved MSA amount. A Medicare beneficiary may or may not have documentation they can provide the physician, provider, or supplier from Medicare approving a Medicare Set-Aside amount.

This isn’t exactly news. We knew ICD-10 would eventually come – it did, 30 years late. We also know that CMS desperately wants to create an LMSA process. This process will be tough considering the differences between Workers’ Compensation settlements and Liability settlements. There’s more proof that CMS is truly still working toward its goal too. We created an LMSA for a jury verdict case where much of the verdict is listed specifically as payment for future medicals. This is a situation where a formal LMSA process and approval would be truly helpful. CMS wrote to us in part:

Unfortunately, the Chicago Regional Office is not reviewing Liability MSA’s.  However, we are in the midst of developing policy to eventually do so in the future and once this policy is in place; will issue guidance and information to the respective communities through various communication channels on how a Liability MSA can be reviewed and approved by Medicare.

So will they? Or won’t they?

As we’ve stated before: they will. Be patient. Eventually CMS will give us clear guidance on how and when to utilize LMSAs.

If you would like to consult with a Medicare expert, give us a call at 844.633.5436.