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.
If you have any questions, or would like any other information, please contact our attorneys.