On March, 29, CMS announced the release of a new Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The new guide has been posted and is available in the Downloads section of the CMS Workers’ Compensation Agency Services site at http://www.cms.gov/Medicare/Coordination-of-Benefits/WorkersCompAgencyServices/Downloads/March-29-2013-WCMSA-Reference-Guide-Version-13.pdf.

The WCMSA Reference Guide was created to consolidate information currently found within the Workers’ Compensation Agency Services webpages and CMS Regional Office Program Memorandums, while providing WCMSA information to attorneys, Medicare beneficiaries, claimants, insurance carriers, representative payees, and WCMSA vendors. After reviewing the new guide, I would agree that it is exactly as advertised. There is little new to report for those of us who have researched the CMS website at length and studied each CMS memo released over the past 12 years. For those new to the process, however, the reference guide is an excellent summarization of all requirements, recommendations memos, etc. that have guided us over the years to appropriately protect Medicare’s interests.

While much of the reference guide is technical in nature, providing specific directives for submission, appeals, use of the portal, review expectations, etc., I found three very specific points made to address an area that has historically created confusion. ” If I settle below the CMS threshold amount, does this mitigate the need to prepare an MSA? ”  The short answer is, “No”.  The reasons, specifically explained in the reference guide, are included below:

• Protecting Medicare’s Interests is ‘The Law’
  Any claimant who receives a WC settlement, judgment, or award that includes an amount for future medical expenses must take Medicare’s interest with respect to future medicals into account. If Medicare’s interests are not considered, CMS has a priority right of recovery against any entity that received a portion of a third party payment either directly or indirectly. Medicare may also refuse to pay for future medical expenses related to the WC injury until the entire settlement is exhausted.
• CMS Submission is Recommended, not Required
  There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, however,  the Agency requests that you comply with CMS’ established policies and procedures.”
• CMS Submission Thresholds Are For Workload Management Only
  The thresholds for WCMSA submission to CMS for approval are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure that Medicare pays secondary to WC in such cases.Also note that both the beneficiary and non-beneficiary workload review thresholds are subject to adjustment. CMS reserves the right to change or remove these thresholds based on Medicare’s interests. Claimants, employers, carriers, and their representatives should regularly monitor the CMS website at http://www.cms.gov/Medicare/Coordination-of-Benefits/Workers-Compensation-Medicare-Set-Aside-Arrangements/Whats-New/Whats-New.html for changes to these thresholds and for other changes in policies and procedures.

I hope the three points above adequately clarify when an MSA is needed as compared to when CMS submission is appropriate.  If questions remain, however, or should you other questions about the guide and its legal implications in settlement, please contact Kristine Wilson, Esq. @ 888-331-4941.

CMS encourages us to continue to visit its website for future updates to the reference guide, including additional details regarding the Workers’ Compensation Review Contractor’s review process