In yet another push into the future, the Office of Information and Regulatory Affairs (OIRA) Dashboard today indicates that any possible Notice of Proposed Rulemaking regarding Medicare Secondary Payer and Future Medicals (CMS-6047) will not occur until October of 2021, at least.

This proposed rule, believed to set possible parameters for Liability and No-Fault Medicare Set-Asides, has been in progress for a number of years. Prior to today’s update, the rule had been scheduled for March of 2021. It had been previously scheduled for release in August of 2020 and then February of 2020 before that.

Additional timeframes for this rulemaking include October of 2019, September of 2019. CMS approached such policymaking in 2012, redacting it in 2014 only to revisit it again in 2016. The industry remains in a holding pattern, which will continue through the end of 2021, if not longer. 

The Office of Information and Regulatory Affairs’ (OIRA) Office of Management and Budget (OMB) page shows no changes to the language describing the proposed rule.

The Abstract states:

This proposed rule would clarify existing Medicare Secondary Payer (MSP) obligations associated with future medical items services related to liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or other payments. Specifically, this rule would clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services related to such settlements, judgments, awards or other payments. This proposed rule would also remove obsolete regulations.

Previous incarnations of this proposed rule abstract have included language such as:

“Currently, Medicare does not provide its beneficiaries with guidance to help them make choices regarding their future medical care expenses when they receive automobile and liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or payments, and need to satisfy their Medicare Secondary Payer (MSP) obligations,” and “This proposed rule would ensure that beneficiaries are making the best healthcare choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund.”

Essentially, Medicare is no longer indicating that the Beneficiaries do not have guidance about future medical. This could possibly correlate to the prior Medicare Learning Network publications the Agency had disseminated to medical providers, suppliers and facilities. These publications suggested that Medicare Beneficiaries could be billed directly for services if Section 111 reporting was filed, demonstrating a primary payment plan’s availability, with Medicare as a Secondary Payer. The removal of language that there has been no guidance by Medicare could indicate positioning for greater accountability about Medicare Set-Aside usage. This is consistent with a prior change in the Workers’ Compensation Medicare Set-Aside Reference Guide (WCMSA) Version 3.0, which now requires a Beneficiary’s acknowledgement of MSA content, intent, submission processes and associated administration within the Consent Form, as of April 1, 2020.

Allan Koba Compliance Solutions will continue to monitor this matter as it develops. Please contact us at info@allankoba.com to learn more.