On March 1, 2022, the Office of Information and Regulatory Affairs released notice of its review of the CMS proposed rule that would “ensure that Medicare beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. See HHS/CMS list of rules at DASHBOARD – EO – REGINFO.GOV

This proposed expansion of the role of CMS raises questions with respect to conflicts with workers’ compensation and liability claim settlements in which the parties negotiate the terms of agreement under the applicable state law. Does CMS have the capacity or expertise to provide meaningful advice to individuals with respect to their best interests relative to the determinations under the applicable state or federal workers’ compensation law over which CMS has no authority? How would this conflict with legal advice provided to beneficiaries or the terms of insurance plans regulated under state law?

The summary of the proposal so far indicates

Regulatory Flexibility Analysis Required: No

Federalism: No

Included in the Regulatory Plan: No

RIN Data Printed in the FR: No

Related RINs: Related to 0938-AR43

Government Levels Affected: None

This summary fails to recognize that there would in fact be an impact on the application of state statutes and state constitutions, and potentially negative consequences for individuals. There are serious federalism issues involved with CMS providing advice to beneficiaries with respect to state law. The proposal would be economically significant.

We are reviewing the proposal and considering whether to comment and how to engage with the OIRA and CMS to assure that the conflicts of law and the practical impact of such a rule are considered.



Douglas J. Holmes


UWC – Strategic Services on Unemployment & Workers’ Compensation