Status & Changes of CMS/MSA Compliance
At the 2022 SAWCA All Committee Conference, a panel shared information and insight on the current status and changes of Centers for Medicare and Medicaid Services (CMS) Medicare Set-Asides (MSA) and their impact on injured workers, employers, and state workers’ compensation systems. Speakers included:
- Moderator: James Forrester – Maryland Commissioner
- Steve Peacock – Director Client Engagement, Safety National
- Paul Sighinolfi – Senior Managing Director, Ametros
- Sid Wong – Vice President of Policy, Casualty Solutions, Verisk
Roughly 10% of MSAs are professionally administered. The professional administrator ensures the funds are spent in accordance with CMS guidelines and that all documentation is provided to CMS to guarantee the injured worker’s future rights to Medicare are protected. Properly administering an MSA is complex and very difficult for an injured worker to complete.
With significant variation post-settlement, some injured workers use all their MSA funds, while other workers decrease or stop treatment. One carrier noted that injured workers will typically spend 70% of professionally-administered MSA funds.
It is important to remember that the entire CMS review and approval process is governed by guidelines, not regulations or statutes, leaving a voluntary submission and approval process with many grey areas. Requirements are also constantly changing. The statutory language is a requirement that Medicare is a secondary payer if other primary payers exist. Thus, if the injured worker has a workers’ compensation claim treatment for that injury, the employer or carrier are primarily responsible for payment.
CMS Review Thresholds
CMS requires minimum thresholds before reviewing a claim for approval. An MSA may still be necessary below those thresholds, but these requirements are in place to control CMS’ workflow.
CMS has indicated recently they will not accept a zero-dollar MSA if the claim is not fully adjudicated as a denial, or if there is a judicial ruling which indicates no future medical is required. However, if the treating physician clearly indicates there is no necessary future medical required, it is safe to proceed with a zero-dollar MSA. CMS avoids reviewing zero-dollar MSAs due to little benefit in expending their resources.
CMS can be very inconsistent with their approach to this entire process because of grey areas that exist in standard guidelines. They do not consistently follow their own evidence-based guidelines and regulations.
Injured workers also face challenges due to treatment denial through CMS, often for a reason unrelated to the workplace injury, particularly if they identify there is a potential secondary payer. Unfortunately, CMS’ typical approach is to deny first and await pushback.