CMS proposal could add layer of complexity to comp cases

"There will be Medicare set-asides in liability cases," predicts a legal expert on the subject. James Pocius' comment followed the release of a proposed rule by the Centers for Medicare and Medicaid Services.

While the proposals pertain specifically to liability cases, they could complicate some workers' comp cases. Pocius, a shareholder with Marshall, Dennehey, Warner, Coleman & Goggin, is advising workers' comp stakeholders to prepare for the situation.

CMS released its Advance Notice of Proposed Rulemaking in the June 15 Federal Register and is accepting public comments until Aug. 14. The regulations are aimed at eliciting comments on whether and how Medicare should implement a process to help determine whether a proposed set-aside amount is sufficient to meet the Medicare Secondary Payer obligations related to future medicals.

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"Currently, individuals involved in certain workers' compensation situations are able to use Medicare's formal, yet voluntary Medicare Setaside Arrangement review process in order to determine if a proposed setaside amount is sufficient to meet their MSP obligations related to future medicals," the proposal states. "To date, Medicare has not established a similar process for individuals/beneficiaries to use to meet their MSP obligations with respect to future medicals in liability insurance, including self-insurance situations."

The proposal outlines seven options to address Medicare's future interests in liability cases. However, none of the options include monetary or time guidelines.

"In workers' comp we have strict monetary protocols as to when we do MSAs, and we have a strict time code," Pocius said. "This is speculation, but Medicare may adopt different standards for review in liability cases."

As he explained, a case with both a workers' comp and liability claim may require a set-aside for one but not the other. Typically, the attorneys and insurance carriers involved in such cases are not in contact.

"They don't talk except for the subrogation demand for the workers' comp carrier to be reimbursed out of the liability case," Pocius said. "That will have to change. It's going to add a layer of complexity we didn't quite have before."

Where workers' comp cases could be affected are those that involve a third party. Traveling employees, for example, frequently have such claims if they are involved in auto accidents or even in slip-and-fall cases on another employer's property.

"Unless they are consistent with the guidances in workers' comp cases, we are going to have problems," Pocius said. "I urge everybody to send in comments."

Pocius has suggested CMS adopt language similar to that for workers' comp, where there are monetary and time limits that govern which cases require a Medicare set-aside.

"We are anticipating that set-asides will be required in liability cases," Pocius said. "With that in mind, all parties in these cases should try and protect themselves and make provisions for MSAs knowing the writing is on the wall and MSAs in liability cases are right around the corner."

Read more at the WorkersComp Forum homepage.

August 2, 2012

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