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MMSEA Update & News – October 2009

Notes from the recent CMS Town Hall Teleconference on October 22, 2009: We are rapidly approaching the date for live reporting to CMS for all Workers Compensation, Liability, and No Fault claims, 4/1/2010. The registration deadline for RRE’s (insurers) was 9/30/09, but CMS has opted to leave the registering process open. CMS has ensured the industry that those entities that were not registered prior to 10/1/09 will not be penalized, but it is expected that all RRE’s will be registered by the end of the year. Due to misinterpretation of the law under MMSEA plaintiff attorneys have been left overwhelmingly frustrated with the varying opinions in regard to whether or not a Liability MSA is now required under MMSEA? By now plaintiff attorneys should be apprised that, although MMSEA Section 111 has nothing to do with Medicare Set-Asides, it does not dismiss the necessity of protecting Medicare’s interest in Liability cases. Barbara Wright, acting Director of the Medicare Debt Management Division within CMS made the following statement in this regard in the MMSEA teleconference held on 10/22/09: ‘Medicare cannot be ignored in Liability cases. Section 111 does not require Liability Set-Asides, but also does not change any pre-existing laws. We do not have the same formal process that we have in WC, with WC an MSA is recommended not required.’ ‘CMS has explained to the RO’s that if there are significant dollars in that case and their workload permits, they may review the proposed MSA. If the RO declines it is not a safe harbor for parties to not consider Medicare’s interest.’ ‘Attaching the MSA to the settlement is one way to appropriately document and take Medicare’s interest into consideration, but CMS at this time can not give any more information than that because there is no formal process. It needs to be documented why (or) why not an allocation was/was not done for future medical.’ The law is cut and dry. MMSEA is only relevant to the insurers and has no relation to MSA’s. Medicare’s interest should be protected in Liability cases, but it is not required that they be submitted to CMS for approval (as is it is also not “required” for WC). For more information on MMSEA, go to www.cms.hhs.gov. Erica Cooper (ecooper@lienss.com) is the Manager of Medicare Services & Compliance, and can answer your Medicare/MMSEA questions. Call Synergy at (877)907-5436 for assistance.

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