Discussing the Workers’ Compensation Medicare Set-Aside with your Client

By Guest Author Rasa Fumagalli, J.D., MSCC, CMSP-F – Director of MSP Compliance Services

By now, most workers’ compensation practitioners are familiar with the Centers for Medicare & Medicaid Services (CMS) voluntary review process involving Workers’ Compensation Medicare Set-Aside Arrangements (WCMSA). CMS is currently willing to review settlements that exceed $25,000.00 in cases involving a Medicare beneficiary. Settlements that involve a claimant with a reasonable expectation of Medicare entitlement within 30 months must exceed $250,000.00. Parties that wish to secure CMS review of the WCMSA are expected to comply with CMS’ guidelines as set forth in CMS’ WCMSA Reference Guide (Guide). The Guide is a compilation of information contained in prior WCMSA Regional Office memos, CMS’ Operating Rules, CMS’ website and from the Workers’ Compensation Review Contractor. It is periodically revised throughout the year. Although the impact of many of the revisions are often negligible, some are more significant.

One of the more significant changes in the Guide was initially introduced in Version 3.0 of the Guide that was published on October 10, 2019. The change involved the consent-to-release note and submission process that would be implemented for any submission after April 1, 2020. Section 10.2 of the Guide provides that “as of April 1, 2020, all consent-to-release notes must include language indicating that the beneficiary reviewed the submission package and understands the WCMSA intent, submission process, and associated administration.” The consent form must also include the beneficiary’s initials to “indicate their validation.” The language in the new consent-to-release note specifically states: “Further, I have had the Workers’ Compensation Medicare Set-Aside Arrangement need and process explained to me, and I approve of the contents of the submission.”  Prior to the change in the consent-to-release note and submission process, claims handlers would often submit a proposal to CMS for review without a full discussion or any discussion with the claimant’s counsel. This would be done in order to assess the potential exposure in the claim.  By requiring the claimant to approve of the submission, CMS essentially put a halt to this practice.

The change in the consent-to-release note and submission process adds another layer to the practitioner’s handling of the workers’ compensation case. Rather than automatically returning an executed consent to release note to the employer’s defense counsel or MSA vendor, the practitioner should review the submission packet and go over it with the claimant to ensure that informed consent is given. Careful attention should be paid to the way disputed or denied conditions are addressed in the WCMSA in order to prevent any subsequent issues with Medicare’s denial of post settlement treatment.  Practitioners should also consider the way non-Medicare covered injury related future treatment expenses will be handled in the settlement since the WCMSA will only include Medicare-covered services. A counter WCMSA proposal may also be appropriate in certain cases depending upon the nature of any disputed future treatment. Once the discussion of the WCMSA itself is completed, the practitioner must also discuss the proper administration of the WCMSA funds once the case settles. This last requirement should not be overlooked since a failure to properly exhaust the WCMSA will result in Medicare’s denial of injury-related benefits until the amount that was misspent is used for injury-related Medicare-covered expenses.  In certain cases, it may be prudent to have your own MSP compliance expert do the informed consent explanation with the claimant to avoid potential liability for the law firm.

Synergy’s team is available to assist you with your discussion of the WCMSA, submission process and administration requirements. We also offer independent review of the defense WCMSA and preparation of a counter WCMSA.   Our Medicare Expert Case Evaluation service allows you to have one of Synergy’s MSP compliance attorneys explain all about the WCMSA to the claimant so you can document your file properly.

Contact our team at 877-242-0022 or on our website.