What About LMSAs? CMS Postpones Guidance
The Centers for Medicare & Medicaid Services (“CMS”) continues their progress towards building a process for Liability Medicare Set-Asides (“LMSAs”) and No-Fault MSAs (“NFMSAs”). With that said, CMS has been unable to issue regulations to move the process forward.
First, CMS issued MLN Matters Number SE17019 on September 19, 2017. That MLN Matters transmittal was meant to teach medical providers how to bill where an MSA exists. It was rescinded on October 3, 2017.
Second, CMS has been promising guidance for LMSAs and NFMSAs to that point it promised some sort of news by the end of October 2017. That news is no news:
“The Centers for Medicare and Medicaid Services (CMS) continues to consider expanding its voluntary Medicare Set-Aside Arrangements (MSA) review process to include liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS will work closely with the stakeholder community to identify how best to implement this potential expansion of voluntary MSA reviews. Please continue to monitor CMS.gov for updates and announcements of town hall meetings in the near future.”
What does this all mean for settlements? MSAs are not required by law (that remains true even for Workers’ Compensation), but, they might still be a good idea. Medicare law states that Medicare shouldn’t pay if someone else has paid.[1] There are many questions as to what it means that someone else has paid, and questions as to what they have paid. For that reason it remains as important as ever for attorneys to consider the Medicare Secondary Payer process. We continue to expect some guidance as a new MSA review contractor comes into place for Medicare. For now, we’ll keep waiting.
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[1]See 22 USC 1395y(b)(2)(A)(ii): “In general Payment under this subchapter may not be made, except as provided in subparagraph (B)” (Conditional Payment), “with respect to any item or service to the extent that—” “payment has been made … under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.”