Clarification of the Treatment of Future Medical in Liability and No Fault Cases on the Horizon

Progress is being made by the Centers for Medicare and Medicaid Services (CMS) toward implementing rules for addressing future medical in the context of liability cases.  This week, CMS forwarded for review to the Office of Management and Budget (OMB) CMS’ Notice of Proposed Rule Making (NPRM).  The rules are anticipated to set forth CMS’ expectations as to how Medicare beneficiaries and their representatives comply with obligations under the Medicare Secondary Payer Statute in releasing future medical benefits in the context of liability, no fault and workers’ compensation claims.  Currently there are several procedures in place addressing future medical in workers’ compensation claims.  There is minimal guidance in liability and no fault recoveries with similar future medical concerns.

The process began in June of 2012 when CMS published an Advance Notice of Proposed Rule Making (ANPRM).   The ANPRM was open for public comment for a period of 60 days and closed in August 2012.  Once approved by the OMB, the NPRM will be published and a 60 day public commentary period will be allotted.  It has not been announced when approval by OMB of the NPRM is anticipated.  Any NPRM could be subject to further periods of comment and revision.  A final rule is not likely until 2014.

CMS also submitted to the OMB this week proposed rules for review which address Section 111 Mandatory Insurer Reporting penalties and proposed safe harbors from the $1,000 per day per claim fine.  The SMART Act, passed in January 2013, changed the penalty from mandatory to discretionary and directed CMS to consider proposals which would allow Required Reporting Entities (RRE) a safe harbor from fines.

Jennifer Burke Santoro

Jennifer Burke Santoro

Jennifer Burke Santoro, is a Medicare Set-Aside Certified Consultant practicing in the firm's Chicago office. In addition to her Medicare work, Jennifer defends employers in Workers' Compensation matters and maintains an active general liability defense practice.