CMS Withdraws Proposed Rule Regarding Medicare Set-Asides and Liability Claims

On October 8th, the Centers for Medicare and Medicaid Services (“CMS”) withdrew its Notice of Proposed Rulemaking (NPRM), which proposed regulation of future medicals for settlements in liability claims.

The proposed regulation was intended to provide guidance on how to protect Medicare’s interests in liability situations.  Unlike the recommendations given for a workers’ compensation claim, CMS does not have a recommended policy regarding the provision of future medicals in a liability claim. The NPRM appeared to be CMS’ attempt to establish such guidelines.  The withdrawal of the NPRM has not changed the way we advise with regard to protecting Medicare’s interest from a future medical perspective in liability claims.  Despite the lack of clear guidance on how to provide for future medicals in liability claims, the law still requires that the burden of paying for a claimant’s future medicals not be shifted to Medicare.  Therefore, it is still advisable in certain cases to either designate a portion of the settlement proceeds for future medical expenses, and in large settlements, in order to effectively evaluate the potential cost of future treatment, to consider a Medicare Set-aside.