Release of proposed “future medicals” rules will be delayed

By Mark Popolizio  |  August 12, 2019

New notice pushes back release date to October and makes other changes

The Centers for Medicare and Medicaid Services’ (CMS) much anticipated release of proposed rules to address “future medicals” in relation to non-group health plan settlements will be delayed from September 2019 to October 2019, according to a Spring 2019 notice released by the Office of Information and Regulatory Affairs (OIRA). This new release modifies the OIRA’s Fall 2018 notice on this matter. CMS’ expected proposals have garnered particular interest in liability circles where questions regarding future medical obligations and liability Medicare Set-Asides (LMSA) have been a vexing issue in this area for years.

In addition, modifications were made to the description “Abstract” as originally contained in the Fall 2018 notice. 

By way of context, the Fall 2018 description read as follows:

This proposed rule would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. Currently, Medicare does not provide its beneficiaries with guidance to help them make choices regarding their future medical care expenses when they receive automobile and liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or payments, and need to satisfy their Medicare Secondary Payer (MSP) obligations.

The updated Spring 2019 description keeps the first sentence contained in the Fall 2018 notice but eliminates the second sentence. Thus, the Spring 2019 now notice reads as follows:  

This proposed rule would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. 

It is unclear why the second sentence in the Fall 2018 notice was removed, and what potential significance its elimination may have in terms of CMS’ expected proposals. Given the rather general and vague descriptions contained both notices, attempting to decipher CMS’ intentions beyond conjecture is difficult at this point. The rubber will meet the road on all of it when CMS releases the actual proposals.

As for other matters, the updated OIRA notice continues to code the forthcoming proposals “economically significant;” meaning that the OIRA has determined that “it is likely to have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”[1]

ISO Claims Partners is closely monitoring this issue and will provide future updates as warranted. In the interim, please contact the author directly at mpopolizio@verisk.com if you are interested in learning more.

[1] https://www.reginfo.gov/public/jsp/Utilities/faq.myjsp


Mark Popolizio

Mark Popolizio is the Vice President of MSP Compliance and Policy for ISO Claims Partners. Mark’s area of specialty is Medicare secondary payer compliance. He authors regular articles and provides educational presentations across the country on MSP issues. Mark's e-mail address is mpopolizio@iso.com.