The Centers for Medicare and Medicaid Services (CMS) recently released data that provides insight into its Workers’ Compensation Medicare Set-Aside (WCMSA) reviews.  This is the first time CMS has released such detailed metrics.

CMS shared statistics for a 3-year period of 2020 through 2022 (CMS’s fiscal year ends on Sept. 30). The data compared proposed MSA amounts with the CMS-recommended amounts (what we typically call the “approved” MSA amounts).  The data can be found here.

 MSA reviews are down

In 2020 CMS completed 16,517 reviews and by the FY end of 2022, this had dropped to 13,752 reviews, a 17% decline.

The reason for the decline is up for speculation.  There may have been fewer settlements and thus fewer MSAs during the pandemic. However, NCCI’s data* show that claim frequency only declined by about 1% when 2020 and 2021 are considered together.

Another theory is that the reduction reflects a trend of settling parties choosing not to submit the MSA to CMS for approval.  Whatever the reason, there has been less engagement with the CMS WCMSA review program.

 Review Methodologies Remain Consistent

When CMS disagrees with a proposed MSA amount it issues a counter-higher with an amount it recommends for the MSA allocation.  The data provided by CMS show that the variance between total MSAs proposed versus recommended change was 13% (2020), 15% (2021) and 14% (2022). This consistency of result is because CMS’s WCMSA review methodologies have remained largely the same over the last several years.

Average Recommended MSA Is Steady

The year-over-year data show very little change in the average recommended MSA amount from $84,563.33 in 2020 to $81,571.75 in 2022.

 A Billion Dollars a Year

The CMS data show that the amount the agency consistently recommends for all the MSAs comes to over $1 billion annually.  However, this does not necessarily represent $1 billion in savings to Medicare.  Savings result when the MSA is funded in a settlement and the MSA funds are expended for injury-related medical care that Medicare would otherwise cover.

How Tower’s MSAs Stack Up

The release of these statistics gives us a unique opportunity to compare Tower CMS-approved MSAs against all CMS-approved MSAs.

Average CMS-Approved MSA (2021 numbers):

CMS:  $80,741                                                 Tower:  $54,956

Tower’s CMS-approved MSAs are 32% lower than the CMS average approved MSA

And if we isolate just the prescription drug component of the MSA.

Average CMS-approved Rx Amount in MSA (2021 numbers):

CMS: $20,916                                                  Tower:  $14,079

Tower is 33% lower than the CMS average for the prescription drug component.

These comparisons prove that Tower’s MSA allocation methodology along with our focus on cost mitigation through interventions, such as our Physician Follow-up service, reduce MSA allocations. Simply put, what this means to our partner clients is millions of dollars in savings.  These metrics also show that cost reductions can be obtained, even when payers choose the CMS MSA approval process.

The release of data on CMS programs has been a policy initiative of the National Medicare Secondary Payer Network (MSPN), to which Tower belongs. We are pleased that MSPN’s efforts have resulted in this release.

We also thank CMS for publishing these statistics.  Hopefully, it will become an annual report that includes more metrics on WCMSA reviews, such as the percentage of MSA proposals that are developed for information post-submission. It would also be interesting to learn how many MSAs are funded in a lump sum versus those funded via an annuity. In addition, MSPN is interested in metrics surrounding Section 111 reporting and Medicare conditional payments.

If you have any questions about this report or anything else on MSP compliance or MSAs, please feel free to contact Dan Anders, Chief Compliance Officer, at Daniel.anders@towermsa.com or 888.331.4941.

*See Rabb, W., (2022, May 11). “Claims Frequency Up for 2021, but Workers’ Comp Profitability ‘Unprecedented,’” Insurance Journal.

On October 13, 2022, the Centers for Medicare and Medicaid Services (CMS) withdrew its proposed rule on future medicals in liability settlements from review by the White House Office of Information and Regulatory Affairs (OIRA review and approval is required before a proposed rule is published).

While never published to the public, the proposed rule was expected to provide guidance regarding obligations associated with future medical items in liability cases. It was commonly believed these obligations would include the use of a Liability Medicare Set-Aside (LMSA), similar to MSAs used in workers’ compensation, in certain situations.

What is uncertain now is whether a proposed rule around LMSAs will be reworked and resubmitted to OIRA for consideration soon or whether CMS is closing out regulations around liability settlements and future medicals for the foreseeable future. This is the second time CMS has withdrawn a rule on LMSAs, with the first withdrawn in 2014.

Practical Implications

While the lack of guidance around future medical obligations to CMS may have frustrated parties to liability settlements, these parties could have been even more frustrated if CMS had issued rules. As it is, parties in liability cases continue to have much more discretion in determining how to best consider Medicare’s interests in future medicals at the time of settlement than do parties in workers’ compensation cases.

What should settling parties do, given that no CMS LMSA review policy or process currently exists? Please reference Tower’s “Navigating Through the Fog: Medicare, Future Medicals & Liability Settlements” as a starting point. Of course, always feel free to contact me, Dan Anders, for consultation at Daniel.anders@towermsa.com or 888.331.4941.

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A common question we receive is whether a CMS-approved $0 MSA is still possible.  The answer is, yes– if it meets the criteria.

There are three different ways a $0 MSA can be obtained, each with its own criteria and documentation requirements.

Denied Claim $0 MSA

This is a $0 MSA based on a completely denied workers’ comp claim when no payments have been made for medical treatment or indemnity.  In certain jurisdictions, such as California, some medical payments can have been made during a statutory investigating period. Payments for non-treatment purposes such as IMEs, case management and medical records copies do not impact the ability to obtain a $0 MSA approval.

This type of $0 MSA has significant documentation requirements:

1. Claim Payment History

• A claim payment history printout, even if blank, representing payments since the inception of the claim. All payments must be itemized.
• Printout must be divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total listed. This printout needs to include the print or run date.
• If the claim payment history does not meet the above requirements, then Tower will work with you to identify alternative documentation that meets CMS requirements.

2. Draft or final settlement documents and court orders or rulings or a statement that no such documents exist (see below Financial Detail and Denial Letter). CMS recently added a requirement that there must be a proposed or agreed-to settlement.  Importantly, while CMS requires a proposed settlement, it will reject the $0 MSA if the settlement is finalized, for example with court or commission approval, before CMS’s review and approval of the $0 MSA.

3. First Report of Injury or a statement that no such document exists (See below Financial Detail and Denial Letter).

4. Financial Detail and Denial Letter – At the time of submission Tower will draft a letter for the client to sign that confirms the denial of the claim and any other necessary explanations, such as why no First Report of Injury is available.

5.  Medical Records:  As with a regular MSA, medical records for the past two years must be provided with the submission.

6. CMS Consent to Release form executed by the claimant.

Accepted Claim $0 MSA 

This is a $0 MSA based on medical documentation supporting no further need for injury-related treatment.  In the WCMSA Reference Guide, CMS provides as follows:

The individual’s treating physicians conclude (in writing) that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the WC injury.

In practice, CMS accepts treating physician statements that say the injury-related treatment has resolved or returned to baseline (when there was a pre-existing condition) and that no further injury-related treatment will be necessary as sufficient to support the $0 MSA.

Keep in mind that CMS will not accept the physician’s statement unless it is consistent with the treatment records/notes.  For example, if the physician states the injury-related has resolved, but treatment notes document ongoing pain to the relevant body part, CMS is unlikely to approve a $0 MSA.  Also, if the injured worker will require a revision or replacement to a body part, e.g., a knee replacement, a $0 MSA will not be approved.

In addition to the physician statement, a claim payment history, medical treatment records and an executed Consent to Release are required.

Judicial Decision $0 MSA

CMS will accept a judicial decision after a hearing on the merits of the case as a basis for a $0 MSA.  This can be on a completely denied claim where the judge upholds the denial of the claim or an accepted claim where the judge finds future medical treatment, if any, is unrelated to the work injury.  The key here is the decision is “on the merits.”  If it in any way looks like an agreement between the parties and the judge just stamped their approval, CMS will not accept it.

In addition to the judicial decision, a claim payment history, medical treatment records and an executed Consent to Release are required.

While there are strict documentation requirements, these $0 MSA approvals remain available for workers’ compensation cases meeting the applicable criteria. Please contact Tower MSA Partners at referrals@towermsa.com or (888) 331-4941 to refer a claim meeting these requirements or for further consultation.