The American Association for Justice provided more details about the hopeful elimination of Medicare set asides for Medicare recipients who bring personal injury claims –
Also, I would like to address further the decision by the Centers for Medicare & Medicaid Services (CMS) to withdraw its proposed rule on future medicals. Earlier this week, I sent you information about a victory involving our regulatory advocacy on the topic of future medicals. I have received a number of follow-up questions from members about what the withdrawal of CMS’s proposed rule on future medicals means.
Many of you have asked questions regarding what impact, if any, the withdrawal of the rule has on the necessity of creating a Medicare set-aside for your clients. AAJ cannot provide specific legal advice; however we can supplement the information we provided you earlier this week.
CMS withdrawing the proposed rule called “Medicare Secondary Payer and Future Medicals” has absolutely no impact on the underlying statutory text—the Medicare Secondary Payer Act; 42 U.S.C § 1395y(b)—that provides the parameters for reimbursing Medicare in Medicare Secondary Payer (MSP) situations. To the extent reimbursement was required before the rule was withdrawn, reimbursement is still required. The rule being withdrawn has not altered any obligations in the statute.
Despite this, the withdrawal of the rule is hugely important. As you may know, the rule that Medicare was in the process of promulgating and which was poised to become the law of the land would have required that EVERYONE, both Medicare beneficiaries and non-beneficiaries alike, pay in full for all medical care that might be billed to Medicare in the future without taking into consideration whether or not the individual made a full recovery. More specifically, the rule as drafted by CMS stated:
“If an individual or Medicare beneficiary obtains a ‘settlement’ and has received, reasonably anticipates receiving, or should have reasonably anticipated receiving Medicare covered and otherwise reimbursable items and services after the date of “settlement,” he or she is required to satisfy Medicare’s interest with respect to “future medicals” related to his or her ‘settlement’ using any one of the following options outlined later in this [proposed rule].”
If this rule were implemented, it would have been catastrophic for the vast majority of your clients. It would have significantly reduced their recoveries and made it impossible for many of them to bring claims at all, because there would have been no recovery after Medicare was paid. Eliminating this hugely unfair rule is highly beneficial to you and your clients.
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