MSP Compliance and the Late, Great Jerry Garcia

MSP Compliance and the Late, Great Jerry Garcia

This year marks the 10th anniversary of the Patel Memo, the memo that launched the Medicare Secondary Payer industry. We are forced to look back over the past decade and recognize just how far we have come.

As the late, great Jerry Garcia would say, “What a long strange trip it’s been”.

The Patel memo resulted in a lot of frenzy and confusion, with attorneys and many others in the property and casualty industry coming to believe that CMS approval was required by law, while others, such as Jennifer C. Jordan, Esq., General Counsel at MEDVAL, found the program was virtually unsubstantiated by law or regulation, and existed only in a series of CMS interoffice memorandum posted on the Internet.

Do you recall the name of the claimant of your first WCMSA? Do you recall how long it took to get CMS approval? Do you recall your first counter-higher because CMS made an unannounced policy change while your review was pending approval? 

CMS convinced the entire nation that WCMSA approval was a requirement and it was not until a 2005 court case that it publicly admitted its review program was voluntary. Yet, to this day, confusion continues, our MSP obligations unclear, and the WCMSA review program remains in desperate need of reform.

Could change be on the horizon? Three consecutive Congresses have entertained some variation of a bill to reform the program. Presently we have two Congressional subcommittees investigating the issue and the GAO conducting a study to quantify the financial impact of NGHP MSP issues on all sides. Will the U.S. Supreme Court get the chance in 2012 to take on an MSP case and provide us with much needed guidance?

Every eight seconds for the next ten years, one of 76 million baby-boomers will become automatically entitled to Medicare, a program that is already strained financially to provide for its beneficiaries. The MSP will play a pivotal role in preserving the longevity of the program, yet the uncertainty of how this will be done continues to loom. And so we continue to muddle around in the MSP trenches waiting for change.

Publisher’s Note: This article was adapted from the upcoming 2011 edition of The Complete Guide to Medicare Secondary Payer Compliance, by Jennifer C. Jordan, Esq.

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