Medicare Set-Asides are No Longer Set in Stone

The Centers for Medicare & Medicaid Services (CMS) has long followed a clear path toward revising MSAs: You couldn’t. CMS has finally changed its tune. Its newest Workers Compensation Medicare Set-Aside User Guide lays out those changes.

First – let’s review the soon-to-be-forgotten, defunct MSA re-review process.

1. The old process did not allow re-review where the submitter wanted to appeal CMS’s determination. That means that even where the submitter disagreed with CMS, he could not appeal. Even where CMS made an error (real or perceived) he could generally not appeal;
2. Instead, CMS’s Regional Offices could perform an administrative re-review as the original review was by a CMS contractor;
3. The old process did not allow re-review where the settlement was delayed and the plaintiff’s medical conditions had changed (even if the changes were significant and even where the changes meant a higher MSA to benefit Medicare);

Now we have a process that allows for re-review. This is good news. For the raw language CMS included in its user guide take a look at Section 12.4.3. The new re-review process allows for re-review or amended review if:

1. This is the first request for amended review (meaning – it can only be submitted for re-review once);
2. The amended MSA will result in either a 10% increase or a $10,000 increase in the approved MSA; and,
3. The original MSA was submitted to CMS more than 1 year ago and less than four years ago.

Practically speaking, this means that there are options to adjust an MSA where options previously did not exist. It is also important to keep in mind that MSAs are not legally mandated, they are simply designed to prevent Medicare from paying for items that were part of the lawsuit. These changes do not mean that CMS will allow for dueling MSAs presented by both plaintiff and defendant so it is important to discuss and negotiate whose responsibility it is to allocate the MSA.

Liability MSAs and No-Fault MSAs are on the horizon too. The soon-to-be-announced, new Workers’ Compensation Review Contractor (“WCRC”) will be tasked with some review of LMSAs and NFMSAs as soon as July 1, 2018 (per the WCRC Request for Proposal – a sort of government contract application). Please contact us for help with all forms of MSAs, lien resolution, or medical cost projections (“MCPs”) at 844-MED-LIEN.