There has been a great deal of commentary from the liability industry concerning the necessity of liability Medicare Set-Aside (MSA) allocations under the Medicare Secondary Payer Act (MSP), and whether the published guidance applicable for workers’ compensation MSAs provides any insight regarding how liability MSAs should be handled. Although there is no statutory requirement to create an MSA when future medical expenses are awarded, it is recommended by the Centers for Medicare and Medicaid Services (CMS) and has become a best practice in workers’ compensation cases. In liability cases, resistance to MSAs continues due to a lack of published guidance and issues that are specific to liability cases. For example, if a settlement is only $100,000, and the projected MSA is $150,000, how can plaintiff’s attorneys get their fees if the entire settlement is taken up by an MSA?
A finalized settlement that includes a Medicare Set-Aside (MSA) where the parties have not yet obtained approval from the Centers for Medicare & Medicaid Services (CMS) can cause misunderstandings and complications, particularly on the part of claimants who are anxious to receive their settlement funds and may not understand the wait time associated with receiving CMS approval of the MSA. This was the issue that arose in Harrelson v. Arcadia, NO.2010 CA 1647, Court of Appeals of Louisiana, First Circuit.
CMS recently issued a Memorandum dated May 11, 2011 confirming there are no statutory or regulatory provisions requiring a WCMSA be submitted to CMS for review. Submission of a WCMSA proposal to CMS for review and approval is a voluntary process which is recommended by CMS, but not required. This statement in writing by CMS … Read moreCMS Issues Memorandum Reiterating WCMSA Voluntary Review Thresholds
The below statement regarding WCMSAs was included in the financial report issued by Centers for Medicare and Medicaid Services’ (CMS) for fiscal year 2010 wherein they document an increase in the amount of approved WCMAs in the first 11 months of fiscal year 2010 due to CMS pricing of prescription drugs. However, it is anticipated … Read moreCMS Issues Financial Report for Fiscal Year 2010 Addressing WCMSAs