Is Congress Finally Moving Forward with WCMSA Reform?
Roy Franco
August 7, 2014

A couple of weeks ago I published an article with Insurance Thought Leadership to marshal support for a strategy for WCMSA legislation should H.R. 1982 not past this year.  Since then, the Senate has introduced companion legislation in the form of S. 2731.    The pathway to a law is still unclear, nonetheless,  introduction of S. 2731 is a major step in that process, and the stakeholders involved should be proud of this achievement.  In looking over S. 2731 as compared to H.R. 1982 it is not an exact match, which means differences between the two bills will have to be reconciled.  The major differences we see between the two are: 

·        Full satisfaction of the claim obligation now only applies to future, whereas the House bill extinguishes both
·        There is no safe harbor MSA for a flat payment of 15%, whereas the House bill included one; and
·        Professional Administration is supported, whereas the House bill was unclear
The Senate version reduces the opportunities for an adverse score, as CMS would not lose ground on present gains it has made on the recovery of conditional payments, which represent medical expense.  Also, removing the safe harbor makes moot any discussion with CMS on the values they collect today as a percentage of the settlement, which could be another sticking point cost.  These two elements alone make it easier for the Congressional Budget Office to score the legislation.  A necessary step for this law to be a reality would require a score, and the Senate version puts the bill in a better place.  That being said, it also may remove those that would oppose it.  The clarification allowing for professional administration, being a strong indicator of such.   We will know more when Congress returns to D.C. on September 8th.  It’s always exciting to watch how legislation comes together, and there is no doubt this area of the law needs clarification.  If for reasons the law does not become a reality, I urge all stakeholders to consider gathering to discuss additional methods, like those considered in the Senate version that could promote ease of understanding and quick adoption for the next legislative session.