CMS has been holding Town Hall conference calls regarding implementation of Mandatory Insurer Reporting (MIR) pursuant to Section 111 of the Medicare, Medicaid, SCHIP Extension Act of 2007. During these calls, there are periodic questions regarding Liability Medicare Set Asides (LMSA). During the call on 3/16/2010 a question was asked about the necessity of creating LMSAs, this was the question and Barbara Wright's (Acting Director of the Medicare Debt Management division at CMS) response:
"We sometimes hear discussion in the course of settling cases and claims about whether on the liability side, not worker’s comp, but on the liability side, there is now, or is expected to be in the future, any vehicle such a what they refer to as a Medicare set aside, or starting to get into that sort of practice. Do you have any thoughts or any expectation that doing Medicare set asides is ever going to be something that enters the world of the liability and casualty payers?
Barbara Wright: It has already entered. As we’ve said on many calls, CMS has formalized process to review proposals for workers’ compensation, Medicare set aside amounts. It does not have the same formalized process for liability Medicare set aside arrangements. The process for worker’s compensation is voluntary.
We have a process for an informal process on the liability side that if a plaintiff’s attorney or insurer, et cetera, wishes to approach the appropriate CMS regional office and the regional office has the ability to do so workload or otherwise, that they can choose to review a proposed set aside amount if they believe there is significant dollars at issue.
Again, it’s not the same extensive process that we have for worker’s compensation. But regardless of whether CMS has a formalized process, or regardless of whether or not you’re participating in the formalized process for worker’s compensation Medicare set aside, the statute has the same language in either situation. It’s not parallel language. It’s not similar language. It’s literally the same physical sentence that we’re not to make payment where payment has already been made.
So where future medicals are a consideration in arriving at the settlement, et cetera, then appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services."
While this dialogue is not necessarily elightening regarding a very difficult issue, it does give some insight into CMS' position regarding Liability Medicare Set Asides.