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CMS Announces Consideration for Expansion of Liability MSAs

CMS Announcement June 8, 2016 – Consideration for Expansion of Medicare Set-Aside Arrangements (MSA)

“The Centers for Medicare and Medicaid Services (CMS) is considering expanding its voluntary Medicare Set-Aside Arrangements (MSA) amount review process to include the review of proposed liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS plans to work closely with the stakeholder community to identify how best to implement this potential expansion. CMS will provide future announcements of the proposal and expects to schedule town hall meetings later this year. Please continue to monitor this website for additional updates.

What This Means for Trial Attorneys

This appears to be the latest attempt by CMS to establish some sort of formal guidelines for liability MSAs. CMS started the regulatory process for liability set asides with the Advanced Notice of Proposed Rulemaking (ANPRM) proposal in May 2012.  However in October 2014, CMS withdrew its Notice of Proposed Rulemaking (NPRM) for protecting Medicare’s interests with respect to future medicals. With the NPRM, it was anticipated CMS was going to establish formal regulations for liability Medicare set-asides (MSAs).  Before the failed attempt to establish regulations, the agency had only issued one formal memorandum back in September 2011.

This recent announcement from CMS follows an article published last month in AAJ’s Trial Magazine. The article indicated that CMS is making liability MSAs a priority in the next 24 months. “It recently became evident that CMS remains undeterred in its quest to develop a fund collection process for so-called ‘future’ medical care. In January, the Department of Health and Human Services issued its budget for the 2017 fiscal year. This budget included a line item indicating that CMS has requested legislative authority to pursue a new policy on the treatment of future medical care that mandates a lump sum, upfront flat fee.”

In 2014, Synergy provided commentary on the ANRPM to CMS.  We provided a suggested workable framework for how to address protecting Medicare’s future interests on liability claims. Synergy will continue to work with CMS to make sure any future regulations are appropriate for the stakeholders we represent. If promulgated changes are going to occur with respect to protecting Medicare’s future interests, Synergy will continue to be the voice of reason on behalf of injury victims and plaintiff attorneys.


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