Changes to the Liability MSA Process are Imminent: Are You Prepared?

A proposed rule- marked as an “economically significant” priority- that will impact liability settlements has been added to the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions. According to the proposed rule, the September 2019 updates will “ensure that beneficiaries are making the best health care choices possible […] while also protecting the Medicare Trust Fund.” With the long-anticipated changes on the horizon, how can you ensure that you are adequately protecting your clients and your practice?

Existing Liability MSA Guidelines

Under Medicare Secondary Payer (MSP) provisions, Medicare takes a back seat on payment if a beneficiary receives settlement proceeds intended for future medical care. The preferred vehicle for preserving the funds is a Medicare Set-Aside, which is not a requirement but is highly recommended as the means for protecting the Medicare Trust Fund.

Although there is little published guidance on a framework for reviewing Liability MSAs, CMS did issue a Change Request in early 2017. The Change Request addressed procedures, policies, and system updates for LMSA and No Fault Medicare Set-Aside MSP records, instructing Medicare Administrative and Recovery Contractors (MACs) to deny payment for goods or services that should be covered by liability or no fault settlement proceeds. The Change Request made it clear that Medicare is within its rights to deny payment for and/or to seek reimbursement for medical costs that should have been paid for with settlement proceeds.

How can you protect your client and your law firm?

Before settling a case involving a client who is already on Medicare or who anticipates eligibility in the near future, contact an expert settlement consultant. Your consultant can help coordinate all aspects of the LMSA process, including:

• Obtaining an LMSA opinion letter
• Determining the appropriate allocation
• Educating the claimant on self-administration vs. professional administration; and
• Helping the claimant decide between funding the LMSA with cash or with a structured settlement.

For more information, contact Sage Settlement Consulting today.

Sage Settlement Consulting, LLC and its affiliates (collectively, “Sage”) does not provide advice or services related to the purchasing of, selling of, or investing in securities or other financial instruments. Any discussion of securities contained herein is not intended or written to be used, and cannot be used, as advice related to the purchasing of, selling of, or investing in securities or other financial instruments. Sage does not provide legal, tax, or accounting advice or services. Any discussion of legal or tax matters contained herein is for illustrative purposes only and is not intended or written to be used, and cannot be used, as legal advice or for avoiding any penalties that may be imposed under Federal tax laws.