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CMS Acting Administrator Answers Two Questions Regarding MSP

CMS’s Acting Administrator, Marilyn Tavenner, was questioned during her Senate Finance Committee nomination hearing two weeks ago about a couple of MSP related issues.  The vote on her confirmation is expected today.  Below are the questions posed by Senators Hatch and Wyden along with Ms. Tavenner’s written answers.  This is some interesting information.

Hatch Question 37:  

Regarding Worker Compensation Set-Asides:  During the confirmation of William Schultz, the department’s General Counsel, in response to a question about well-document problems with the CMS review of Worker Compensation Medical Set-aside Accounts (WCMSA), he indicated your agency is  taking steps to become more transparent, is considering the adoption of an appeals process in order to ensure fairness and consistency, and is reviewing whether the use of evidence-based guidelines should be expanded. Unfortunately, since his answers were submitted, the agency released some documents that have been used to assess WDMSA submissions.  The issue remains unaddressed.  Instead, according to some observers, it only highlights the inconsistency and deficiency of the review process for WCMSAs, which continues to put the Medicare Trust fund and the interests of beneficiaries at risk.  What additional steps will CMS take to ensure that 1) the review program is operated in a transparent and consistent fashion; 2) utilizes scientific, evidenced-based guidelines when reviewing submissions; and 3) establishes an appeals process in order to, as Mr. Schultz suggested, “ensure fairness and consistency”?


On June 15, 2012, we published an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public input on options that could be used to address future medical expenses related to an accident or injury for which there is third party liability, including in workers’ compensation cases. We received over 100 comments. As noted in our ANPRM, we anticipate promulgating rules on these issues in the near future, consistent with the SMART Act that was enacted in January.

We are always striving to improve the MSP program so that we operate in a transparent and consistent manner.  In the past, we have heard from stakeholders that we should offer additional information about the operation of the MSP program, and we are working hard to provide guidance to help educate stakeholders about the operation of the MSP program. While the informal guidance we recently released does not yet address all of the concerns we have received regarding WCMSAs, it does list the criteria we will consider in making decisions about a particular WCMSA as well as the procedure for receiving and reviewing WCMSAs. We are considering the feedback received on the program as we consider potential improvements.


Wyden Question 1:

Medicare Secondary Payer reimbursements have been an area of concern for me. At the close of last Congress, the SMART Act (P.L. 112-242), which streamlined the Medicare Secondary Payer system, became law. When do you expect to begin the process of implementing the law?

I understand that CMS issued an Advanced Notice on Proposed Rulemaking on the issue of payment of future medicals costs in reference to Medicare as a secondary payer last year. In light of this Advance Notice, I want to be sure that changes will not impact the ability to maintain and improve access to services and supports for those individuals who have acquired a disability or chronic condition in relation to an unfortunate event resulting in a liability settlement. What are you doing to ensure that this rule is fair and won’t result in consumers losing access to health care? What are your plans, if any, for next steps regarding this proposal?


Since the enactment of the SMART Act, we have reviewed the legislation and expect to implement the law through notice and comment rulemaking so that stakeholders may provide feedback on our planned implementation. We received over 100 comments on the Advance Notice of Proposed Rulemaking (ANPRM) we published on June 15, 2012. The ANPRM solicited public input on CMS’ proposed options to address Medicare Secondary Payer (MSP) future medicals obligations, and it invited stakeholders to propose additional options for resolving MSP future medicals obligations. As we stated in the ANPRM, we intend to respond to comments received in response to the ANPRM in future rulemaking, consistent with the SMART Act.

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