The Centers for Medicare and Medicare Services (CMS) is considering expanding the voluntary Workers’ Compensation MSA review process to include review of liability and no-fault insurance MSA amounts. The June 9, 2016 notice states as follows:

The Centers for Medicare and Medicaid Services (CMS) is considering expanding its voluntary Medicare Set-Aside Arrangements (MSA) amount review process to include the review of proposed liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS plans to work closely with the stakeholder community to identify how best to implement this potential expansion. CMS will provide future announcements of the proposal and expects to schedule town hall meetings later this year. Please continue to monitor CMS.gov for additional updates.

CMS had made a prior effort to address future medicals in liability settlements which began with the publication of an Advanced Notice of Public Rulemaking (ANPRM) in the Federal Register on July 15, 2012. Public comment to the ANPRM was solicited and received followed by CMS submitting a Notice of Proposed Rule Making to the federal Office of Management and Budget (OMB) for publication. However, the Proposed Rule was never published and CMS withdrew the ANPRM without comment on October 8, 2014.

CMS hinted again that it is considering expanding MSA reviews to liability when it announced that the Workers’ Compensation Review Center (WCRC) contract was delayed.  In this February 2016 announcement, CMS stated, without elaborating, that the delay is “due to updates that are currently being made to the Statement of Work (SOW) to include the processing of other Non-Group Health Plan (NGHP) Medicare Set-aside Arrangements.”  As workers’ compensation is already covered by the SOW, the “other Non-Group Health Plan” could only refer to liability and no-fault.

Yesterday’s notice is the first clear indication that CMS is re-visiting an MSA review process for liability. Importantly, this time CMS has indicated that it “…plans to work closely with the stakeholder community to identify how best to implement this potential expansion.” Future announcements and town hall meetings are expected on this proposed expansion later this year. ECS will continue to monitor any announcements, CMS updates and town hall meetings.