Non-Submit Medicare Set-Aside

When should a company submit --or not submit-- a Medicare Set-Aside for approval from the Centers for Medicare and Medicaid Services? Let Tower help you decide.


A Non-Submit Medicare Set-Aside (MSA), sometimes called an Evidence-Based MSA, may be appropriate when the settlement does not meet the Centers for Medicare and Medicaid Services (CMS) Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) review thresholds or in situations where the settling parties have decided not to participate in the voluntary CMS WCMSA process. This type of MSA report may be a lower allocation amount than a CMS-approved MSA as a result of the following features:

  • Full Use of Evidence-Based Medicine – Use of evidence-based medicine, i.e., Official Disability Guidelines (ODG) or state treatment guidelines to determine reasonable care to allocate in MSA.
    • CMS inconsistently utilizes evidence-based medicine in its MSA review process. By consistently utilizing evidence-based medicine, the frequency of such allocated treatments, such as diagnostic testing, is typically lower in the Non-Submit MSA.
  • Examining Physician Opinions Considered – Both treating and examining physician recommendations are considered in drafting the MSA.
    • CMS gives little consideration to examining physician opinions.  However, based on the facts of a case, the examining physician may be in a better position to provide appropriate recommendations for current and future medical care because of their expertise and time their opinion is given.
  • State Statutes and Regulations Followed – Fully follow state statutory, regulatory, and other legal bases for including or excluding care from the MSA.
    • While CMS requires an “Alternative Treatment Plan” when medical care is denied through a statutory utilization review (UR) process, a Non-Submit MSA will exclude care solely based upon the UR determination.
  • Claimant Statements and Agreements Considered – Consideration of claimant statements and settling party agreements concerning future medical care.
    • Claimant statement asserting he or she will not pursue a certain course of care, such as a spinal cord stimulator, will normally be insufficient for CMS to exclude such care from the MSA but will be sufficient in a Non-Submit MSA.

Professional Administration Recommended:  Additionally, except for minor MSA allocations, Tower strongly recommends the use of professional administration in conjunction with a Non-Submit MSA. Were CMS to ever question the use of the MSA funds, proper administration will confirm the funds were expended appropriately and allow for a seamless transition to Medicare for payment if the funds run out.

Any questions or concerns regarding the Non-Submit Medicare Set-Aside, including whether this type of report is appropriate for your settlement, can be discussed during a Tower MSA Partners free consultation. If you are ready to refer a matter for a Non-Submit MSA, contact Tower at or (888) 331-4941.


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Medicare Set-Asides

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