LMSA Rulemaking Coming?
Jeff Signor
July 31, 2013

Medicare Plans to issue a Notice of Proposed Rule Making with regard to protecting Medicare’s interest in a liability case this coming September.  Click here: http://tinyurl.com/mmed9tr.  According to the regulatory calendar, the Centers for Medicare & Medicaid Services (CMS) is poised to issue the rule which would allow stakeholders a period of 60 days before it would move toward the final rule making stage.   While a step closer toward clarifying an important area of the law that has left Parties in a quandary when approaching settlements, it may take until next year before a proposed final rule could issue.   

How CMS approaches the method that is appropriate to protect its interest may be gleaned from the ANPRM it issued last June. We filed a response to the ANPRM, along with other stakeholders, which may have an impact on what happens in September.  At a minimum, there should be exceptions where Medicare’s interest is satisfied, without any need for a liability Medicare Set Aside (LMSA).   When a LMSA is used it would be more than likely an option of several other methods.  The party responsible to prepare the LMSA appears, from this notice, to fall on the beneficiaries and their representatives.  This is consistent with how it is set up for workers compensation.  However, look for the insurance carrier and self-insured to be involved to control costs.  
The important  takeaway is that CMS is moving forward in this area and it is important to be prepare and timely respond to requests for comment.