LMSAs… Not So Fast My Friends!

Yesterday, October 26^th, The Centers for Medicare and Medicaid Services (CMS or Medicare) followed up on its targeted, “go live” date to publish some sort of guidance specific to Liability MSAs (LMSAs) or No-Fault MSAs (NFMSAs). And the big news is that there is no news. 

Earlier this month, we advised that the October 1, 2017 guidance date for Medicare has passed without any new guidance on what will happen as Medicare prepares its computer systems to process, track and deal with LMAs and NFMSAs. Most recently, Medicare issued its anticipated guidance, which had some commentators proclaiming the arrival of required LMSAs. We did not see it that way (and, it appears we were correct).

                The sum total of the guidance is reproduced below:

 The Centers for Medicare and Medicaid Services (CMS) continues to consider expanding its voluntary Medicare Set-Aside Arrangements (MSA) review process to include liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS will work closely with the stakeholder community to identify how best to implement this potential expansion of voluntary MSA reviews. Please continue to monitor CMS.gov for updates and announcements of town hall meetings in the near future.

So to date, on October 3, 2017, Medicare rescinded its September 19, 2017 notification,[1] and now it has issued guidance that it will not make a unilateral move without involving the settlement community. As a result, here is where we stand, a few days removed from the last time we looked:  (1) Medicare has made no changes to the February 21, 2017, “change request” alert; (2) its September 19, 2017 guidance has been pulled; (3) there have been no regulations released, no policy memoranda published; and (4) now Medicare will work closely with the industry to figure out how to implement a “potential” expansion. 

So where does that leave the settlement community? Without new guidance, regulations, and with these instructions, the standard remains the same: attorneys should familiarize themselves with the Medicare Secondary Payer rules early on in their process and take steps to educate themselves and their clients on how best to protect their red, white, and blue card. For more steps on how to educate yourselves, please review our October 9^th Client Alert. 

We will continue to keep you informed as new developments occur.

[1]  See https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/SE17019.pdf