Medicare’s Anti-NSMSA and EBMSA Stance

Medicare does not consider Non-Submit Medicare Set-Asides (NSMSAs) or Evidence-Based Medicare Set-Asides (EBMSAs) as true MSAs. Its announcement came in January with a surprise WCMSA Reference Guide 3.5 release (a new version 3.6 now exists). This surprise includes Section 4.3 which states, “CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.” At MASSIVE, we don’t look at this as a change.


Consider Section 3.0 of the Reference Guide. It discusses the scenario where no MSA exists at all. Stating separately: 

“Medicare may also refuse to pay for future medical expenses related to the WC injury until the entire settlement is exhausted.” 

And, “Once the CMS-approved set-aside amount is exhausted and accurately accounted for to CMS, Medicare will pay primary for future Medicare-covered expenses related to the WC injury that exceed the approved set-aside amount.” 


In reality, Section 4.3 adds color to the question: what is an MSA? It does so by specifically stating what is not an MSA.


For plaintiffs, claimants, and applicants, the safest practices are often best practices. In this scenario, that means a true MSA is your best protection. Without an MSA, Medicare may deny payments for future medical care, leaving injured people with no path to treatment. In turn, those injured people – who happen to be your former workers’ compensation and personal injury clients – have just one place to look: their attorneys.


Whether it is in the now-old Section 3.0, or the new Section 4.3 of the WCMSA Reference Guide, Medicare is simply reminding us that MSAs protect all parties.