Monthly Archives: September 2017

Medicare Set-asides – Still Not Required in Liability Cases

The old rules were easily understood. Certain workers comp claims required a Medicare set-aside – and the rules for those claims were straightforward. For other claims – liability and no-fault cases – the parties were still required to satisfy Medicare’s interests out of the settlement.

For years, we’ve been told that Medicare set-asides were coming for no fault and liability cases. You’ve been to the seminars. Some attorneys and insurance companies have probably been telling you for years that this is a requirement.

They’ve been wrong. Until now?

As of October 1, 2017, CMS issued new guidance to the Secondary Payer process: MM9893. Sounds ominous, doesn’t it?

The gist of the rule is that CMS will begin to track whether there is a Liability Medicare Set-aside (LMSA) and if there is, Medicare will stop paying for diagnosis codes that should have been covered by the LMSA. Side note – they didn’t do this before? Why the heck not? I thought that was the point of LMSAs, to the extent that they existed. WTH?

The key point to remember is… that’s it. There is NO REQUIREMENT that an LMSA be set up at all. None. All this says is that if there is one, it has to be used before Medicare will pay again. I’m not just making this up – it’s in the guidance and the rule – ” Liability and NoFault MSP claims that do not have a Medicare Set-Aside Arrangement (MSA) will continue to be processed under current MSP claims processing instructions. ”

There has been no statutory change that requires LMSAs. Remember that when someone inevitably misunderstands this minor change.

Of course, don’t kid yourself – that still might happen someday.

(Howard Zimmerle is an attorney practicing injury law in Iowa and Illinois. You can reach him at 309-794-1660 or hzimmerle [at] qclawyers.com)

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