CMS published an Advanced Notice of Proposed Rulemaking in June of 2012 and asked for comments from the public. CMS subsequently submitted a proposed draft rule to the Office of Budget and Management in September of 2013 for approval before publishing it in the Federal Register. Last week, on October 8, 2014, CMS withdrew its draft proposed rule.
What all of this means is that nothing has changed, and we are right back to where we have always been. There has been no rule change and there is “no future medical rule pending”. It is still the responsibility of both the Attorney and the Claimant to protect Medicare’s future interests if you are settling for future medicals. Failing to protect Medicare’s future interests means that clients are at risk of losing their future Medicare treatment related to the injury settlement.
The issue of future medicals stems from the Medicare Secondary Payer Act, which prohibits Medicare from paying when there is a primary payer. The Act specifically names Workers Compensation, No Fault, and Liability coverage as primary payers, which means that settlements need to repay Medicare for any conditional payments that have been made in the past as well as protecting Medicare’s future interests by not shifting the cost of future care to Medicare. If Medicare’s future interests are not protected, Medicare has the right to deny payment for treatment related to the settlement up to the full amount of the gross settlement. This Memorandum is the only guidance that has been issued by CMS dating back to 2011.