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Medicare Set Asides – Regulations Coming for Liability Settlements, CMS Issues Notice of Proposed Rulemaking

By Jason D. Lazarus, J.D., LL.M., MSCC, CSSC

It appears Medicare is poised to begin the rulemaking process for Medicare Set Asides by issuing a notice for proposed rulemaking as early as September of this year.  As most of you know (from my previous blog posts – to view click HERE), last year they issued an Advanced Notice of Proposed Rulemaking.  This was the first step in the regulatory process.  They solicited commentary from the legal community and industry stakeholders.  I was on AAJ’s committee that provided commentary.  I also drafted commentary of my own on behalf of Synergy.  I hope that CMS considers all of the commentary when crafting rules for set asides as if they don’t get this right, it could cause huge problems in the resolution of cases involving Medicare beneficiaries.  The target date for the “NPRM” is 9/13, so we will know shortly if they gave any consideration to the viewpoints offered.  The NPRM is most likely will address how to set aside properly to comply with CMS’s interpretation of the Medicare Secondary Payer Act. 

A Medicare Set Aside is a mechanism created by CMS to avoid shifting the burden from a defendant/insurer to Medicare for injury related care when future medicals are funded as part of a settlement, judgment or award.  With a set aside, an “allocation” is created to determine the amount of money for future Medicare covered services.  That amount is then “set aside” and spent on injury related care until exhausted.  Once exhausted, Medicare picks up the remaining tab.

To view information on the proposed rulemaking, click HERE

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