Updated Medicare Set Aside Bill Introduced in Senate


By Marty Cassavoy, Vice President Medicare Secondary Compliance

A new bill S. 3079 to revamp the Medicare Set Aside (MSA) process has been introduced in the U.S. Senate.  The bill sponsored by Sen. Rob Portman (R-OH) and co-sponsored by Sen. Bill Nelson (D-FL). Is known as the “Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2018,” represents a stripped down version of previous Medicare Set Aside bills.  

The new bill proposes several changes to the MSA program and review process: 

It creates a formal appeals process for Medicare Set Asides where the parties are dissatisfied with Medicare’s future medical recommendation.

  1. It establishes a process whereby the beneficiary could elect to pay Medicare directly rather than administer their Medicare Set Aside.  By paying Medicare directly, the beneficiary could simply utilize his/her Medicare coverage post-settlement.
  2. It requires CMS to acknowledge state workers’ compensation law in its review of any MSA proposal.
  3. It codifies certain details about MSAs that are currently driven by policy, such as use of state workers’ compensation fee schedules where available.
  4. It modernizes language to change the term “workman’s compensation” to “workers’ compensation” throughout the MSP statute.
  5. It creates a process for “compromise settlements” whereby parties could adjust the amount of an MSA downward in direct proportion to the denied components of the underlying workers’ compensation claim.
  6. It confirms that CMS review of a MSA proposal is never required.

This bill is streamlined from prior versions.  The new bill scraps any reference to review thresholds and eliminates the concept of “qualified MSAs” which were in the previous bills.  It’s difficult to assess how the Congressional Budget Office (CBO) would score this bill, but simplifying the bill may make it less likely that the CBO scores it as adding to the federal deficit. 

Here are some of the changes that might be anticipated. 

  1. The appeals process would afford an extra level of review in the event that parties disagree with an MSA evaluation provided by CMS. 
  1. A beneficiary would have the option to pay CMS directly rather than have an MSA administered.  Details will need to be ironed out, as Medicare has been loath to accept pre-payment of MSA funds. 
  1. The proportional MSA process is something that may be useful, particularly in states like New Jersey, where judges often mandate MSAs which can force parties intoe an all or nothing scenario.    
  1. The bill does NOT mandate submission to CMS, so it is not likely to increase the number of submissions directly, but it could do so indirectly as parties utilize the process to ensure compliance with the Medicare Secondary Payer law and regulations. 
  1. By incorporating so many CMS policies into federal law, this may impact parties who intentionally low-ball future medical in an MSA and rest upon the fact that punitive measures are unlikely.  This bill does not provide for enforcement, but ultimately it writes MSAs into federal law as the means to ensure full satisfaction of claim obligations with regard to the Medicare Secondary Payer statute. The bill incorporates a standard whereby the claimant is “reasonably expected to receive” such future medical care.  A low-ball MSA may be hard-pressed to meet that standard, but a well-reasoned MSA that relies upon medical and legal expertise likely will. 

While the likelihood of any bill passing is low, we will watch it closely particularly after the congressional elections. Historically, Medicare Secondary Payer bills have passed in lame duck sessions, both s. 111 / MMSEA and the SMART Act passed in this manner.  It is also important to note that we don’t always see how the sausage gets made.  The bill that is walked onto the Senate floor is often very different from whatever gets passed.

ExamWorks Clinical Solutions continues to monitor s. 3079.  For questions about the bill and its potential impact, please contact Marty Cassavoy at 678-517-8085 or marty.cassavoy@examworks-cs.com