By: Zachary Pratt
On January 10, 2022, the Centers for Medicare & Medicaid Services (CMS) issued updated Workers’ Compensation Medicare Set-Aside (WCMSA) guidance. The new reference guide specifically addresses the use of “evidence based” and/or “non-submit” Medicare Set-Aside (MSA) products.
The relevant language can be found on pages 6 and 7, Section 4.3. It is fairly straightforward; however the key takeaways are:
- CMS presumes that non-submit MSAs are an effort to shift liability to Medicare.
- Unless a MSA is submitted to and formally approved by CMS, it will not be considered adequate to protect Medicare’s future interests.
- As a result, if the Parties proceed with a settlement using a MSA allocation that was not formally approved by CMS, Medicare will refuse to pay for any medical costs until the Claimant demonstrates complete exhaustion of 100% of the settlement proceeds (medical and indemnity payments).
- While dramatically altering the consequences of proceeding without a CMS approved set-aside, the guidance does not formally change CMS’s underlying submission policy. It remains CMS’s policy that submission for approval is voluntary but recommended.
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