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Proposed rules for addressing future medical obligations to be released

The Office of Information and Regulatory Affairs (OIRA) recently issued a notice entitled Miscellaneous Medicare Secondary Payer Clarifications and Updates (CMS-6047-P). This notice indicates that the Centers for Medicare and Medicaid Services (CMS) plans on issuing proposed rules regarding options to address future medicals in relation to liability, workers’ compensation and no-fault cases. 

The full text of the OIRA notice reads as follows:  

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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.

This notice further indicates that a Notice of Proposed Rulemaking (NPRM) on this matter is targeted for release is by September 2019. This announcement will likely generate particular interest in liability circles where questions regarding future medical obligations and liability Medicare set-asides has been a vexing issue for years. On this front, CMS issued proposed regulations for liability cases back in 2012, but then withdrew them in 2014. 

Of note, the OIRA’s notice lists this potential proposed rule as “economically significant.” A regulatory action is deemed to be economically significant when the OIRA “determines 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]

While OIRA’s notice is a bit vague, in the bigger picture it indicates that CMS is prepared, in some yet to be determined manner, to address options for parties to address future medical obligations in relation to liability, workers’ compensation and no-fault settlements. The exact nature and extent of what CMS is contemplating is unknown at this time but will be unveiled when the NPRM is ultimately released. 

ISO Claims Partners is closely monitoring this issue and will provide future updates as warranted. In the interim, contact the author at if you have further questions.


Mark Popolizio, J.D.

Mark Popolizio, J.D., is vice president of MSP compliance, Casualty Solutions at Verisk. You can contact Mark at

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