Changes to Maryland Workers' Comp Regulations Finalized

Monday, December 5, 2011 | 0

You may recall a September 2011 blog article that discussed proposed amendments to Code of Maryland Regulations 14.09.01 and COMAR 14.09.19 adding specific requirements for workers’ compensation settlements involving Medicare beneficiaries.

These amendments were finalized Nov. 28 and officially adopted into Maryland Workers’ compensation law. The most noteworthy aspect of the new regulations is that the parties are permitted to forego CMS approval of a proposed settlement that meets Centers for Medicare and Medicaid Services review thresholds provided that the settlement documents contain three elements: (1) an acknowledgement that the settlement is within the CMS review thresholds, (2) a statement that the parties voluntarily have elected not to submit the settlement and formal set-aside proposal to CMS for review and approval and (3) a statement that the parties are aware that CMS may refuse to pay for services related to the injury and may assert a recovery claim against any entity, including a claimant, provider, supplier, physician, attorney or private insurer. The previous version attempted to use state law as a means to mandate participation in CMS’ voluntary WCMSA review program, a move that was opposed by both claimant and defense attorneys equally.

While it is unclear whether the commissioners will still find CMS approval in the best interest of claimants and ultimately not approve cases invoking the 14.09.01.19(B)(5) exception, the difference from the previous emergency regs is that at least there exists the option. It will likely take not only the required statements, but a demonstration that the claimant will receive needed treatment post-settlement to get cases approved without CMS approval.

However, in conjunction with recent discussions involving state insurance fund assessments, professional administration of Medicare set-asides (MSA) may soon become more common in the state and provide the commission more confidence in non-approved cases. When using other available tools, such as structured settlements and custodial administration, Medicare’s interests are actually better protected in general because the claimant’s discretionary access to MSA funds can be eliminated and therefore they can only be used to make payments in lieu of Medicare.

Despite the bumpy road getting here, the state of Maryland has achieved a reasonable policy for dealing with Medicare secondary payer issues in comp settlements. With the recent adoption of a pharmacy fee schedule likely to reduce some of the physician dispensing problems that lead to enormous future drug allocations, MSAs in the state may prove to be much less burdensome in 2012.

The new regulations can be found here.