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LMSA update: CMS’s “future medicals” proposals now scheduled for release in March 2021 | New LMSA case decision highlights continuing claims challenges

By Mark Popolizio  |  December 16, 2020

As we approach the end of the year, there are two new updates on the “future medicals” front. First, the Office of Information and Regulatory Affairs (OIRA) has issued an updated notice indicating that CMS’s “future medicals” proposals have been delayed again and projected for release in March 2021. Second, and separately, a new case out of Pennsylvania highlights the challenges parties continue to encounter regarding the LMSA issue.

The following provides an overview of both these updates:

OIRA releases new “future medicals” notice

An updated notice from the Office of Information and Regulatory Affairs (OIRA) indicates that CMS’s long-anticipated release of its “future medicals” notice of proposed rulemaking (NPRM) is now scheduled for March 2021. As many will recall, CMS previously announced two expected release dates in 2019 before then pushing back the projected date to February 2020 and then August 2020.   

It is widely anticipated that the forthcoming NPRM proposals will concentrate on future medical obligations for liability claims (i.e., LMSAs). However, similar to the OIRA’s notice issued earlier this year, the updated notice also references no-fault and workers’ compensation. Thus, we will need to see if CMS’s actual proposals, once released, focus only on liability claims, or whether they will also include proposals related to workers’ compensation and no-fault claims.

In this regard, the text of the new OIRA notice states 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.

ISO Claims Partners is closely monitoring this development and will provided further updates as warranted. In the interim, for a more in-depth discussion regarding this issue please see our recent article Liability Medicare Set-Asides – Bracing for the storm.  

New LMSA case highlights continuing claims challenges

While the industry awaits CMS’s proposals, a new case out of Pennsylvania highlights the continuing uncertainty the LMSA issue can create concerning liability claim settlements.    

As summarized in our recent article, in Abate v. Wal-Mart Stores East, L.P., 2020 WL 7027481 (W.D. Pa. November 30, 2020),  the court found, in part, that CMS’s September 30, 2011 memorandum (commonly referred to as CMS’s “LMSA memo”) did not mandate that the plaintiff, in this case, obtain a letter from her treating physician certifying that her medical treatment was completed, nor required that settling parties create a LMSA where treatment is ongoing. As part of its analysis, the court also noted that the settlement in this case contained several other provisions which took into account Medicare’s interests. Based on these reasons, the court granted the defendant’s motion to enforce the settlement.

How ISO CP can help

ISO Claims Partners can help you address Medicare secondary payer compliance obligations regarding liability and no-fault claims. We offer an array of innovative, proactive, and proven compliance services across the board including, Section 111 reporting, conditional payment recovery claims, and Medicare Advantage liens. We can also help you address future medicals issues and considerations, and we offer MSP protocol development and settlement consultation services. Learn more in our Liability Tool Kit brochure.

Questions?

Please do not hesitate to contact the author if you have any questions.


Mark Popolizio, J.D., is vice president of MSP compliance and policy at ISO Claims Partners, a Verisk business. You can contact Mark at mpopolizio@verisk.com.