The MSA – A Nexus of Legal and Medical Interests

Just as no two car crashes are the same, neither are two Workers’ Compensation cases (WC), especially when the need for a Medicare Set Aside (MSA) account is a possibility. To ensure the protection of the interests of both the injured worker and the Centers for Medicare and Medicaid Services (CMS) throughout the WC claim process, CMS uses both medical and legal principles to confirm the values submitted in every MSA proposal. Companies submitting MSA proposals should be familiar with those principles to avoid unnecessary delays or other complications when working to resolve the case.


No Two Injured Workers are the Same

Lawyers will tell you that every legal case is unique. Even incidents with almost identical fact patterns will differ based on the individual circumstances of those specific occurrences. Doctors will tell you the same thing; patients with identical diagnoses will have different treatment plans and prognoses based on their biological circumstances. Consequently, when the Workers’ Compensation Review Contractor (WCRC) reviews an MSA proposal, they look at the individual and unique circumstances of both the legal and medical situations when deciding to accept, modify or reject it. Not surprisingly, those reviews are comprehensive and complex. WC claimants and parties to the WC case who understand and follow the WCRC's procedural review guidelines stand a better chance of obtaining a swift response and acceptance of their proposal so they can resolve the case and move on.


New Guide - Clearer Guidelines

CMS recently updated its Workers’ Compensation Medicare Set Aside Reference Guide (now version 3.2) to clarify the steps its WCRCs take when reviewing submitted MSA proposals. Any party seeking an MSA should follow these guidelines and use the same tools used by the WCRC to determine the values they include in their documents.


Legal Principles and Factors

The WC case incorporates both legal and medical factors. To resolve the issues in the legal proceeding, the parties work together to determine the exact cause of the injury, who (or what) was responsible for causing it, the nature and extent of the damage, and who will pay for the medical costs needed to help the injured worker recover from it.


The WCRC begins its review by ensuring all the legal requirements are met and appropriate:

  • CMS requires that all claimant information be included and accurate, including their status as a Medicare beneficiary or their eligibility for Medicare services within the appropriate timeframe. A signed consent document must also be submitted with the proposal.
  • It then looks for documentation asserting that the case's facts are clearly established and that there are no discrepancies or outstanding issues that might negatively impact their findings. Documentation included here would be the court filings and agreed-upon settlement documents that state how the injury occurred, who or what caused it, and an agreement by the appropriate party that they are responsible for the costs.
  • In addition to the legal documents indicating liability factors are the medical documents showing diagnosis and prognosis and records of payments made for care received to manage the injury. In most MSA cases, CMS covered initial costs of care services until the finalization of the legal determination. CMS is reimbursed for these payments, so the MSA proposal must include a complete payment history of all costs incurred related to that injury. Further, the costs summary must clarify whether payments made were for expenses, medical care, or indemnity.
  • Once the claimant's identity and eligibility are clear, and the documentation is complete, the WCRC then looks at the WC rules that exist within the jurisdiction where the injury occurred. Each of the fifty states uses its individual interpretation of WC laws, so the WCRC will structure its response to the proposal based on the rules that govern within the specific jurisdiction.


Medical Principles and Factors

The medical evaluation is more complicated than the legal review. Every claimant presents with individual characteristics, each of which can influence how they experience their injury, the choice of treatment they receive, and the nature and extent of their recovery period. To properly evaluate every claimant, the WCRC team uses a series of tools to ensure their review is as comprehensive to that individual as possible.

  • The team itself is populated by healthcare professionals, including doctors, nurses, and counselors. Many carry a variety of credentials and certifications that indicate their expertise in rehabilitation, life care strategies, and medical coding, as examples. Some are also lawyers and bring that dual perspective to the review.
  • Their medical evaluation tools are extensive and include the International Classification of Diseases (ICD)-9 and -10, and the practice guides for Current Procedural Terminology (CPT) and Healthcare Common Procedure Coding Systems (HCPCS).
  • They also look to current research and industry best practice standards to understand the nature of the injury, the claimant's characteristics, and the medical intervention options that offer the best opportunity for a full recovery. These tools are comprehensive in their oversight of healthcare practices:
    • Milliman - This resource connects diagnoses with procedural codes and helps to identify the proper code for the particular medical procedure. It is also used as a resource to determine evidence-based medicine guidelines.
    • MediRegs - This resource provides pricing and payment guidelines while connecting the actual services to their corresponding CPT codes.
    • PubMed - This source is a portal to over 22 million biomedical and scientific citations and offers the opportunity to find researched evidence needed to prove the appropriateness of medical protocols.
    • MicroMedex/DrugDEX - Pharmaceuticals are usually included in the MSA treatment plan. This resource provides informative guidance on the Federal Drug Administration (FDA) indications for prescription drugs, including for their off-label use.
    • Stat!Ref - This tool is a secondary resource to the DrugDex, and also includes a medical dictionary, evidence-based medicine references, and information on clinical conditions.
    • Red Book - This resource indexes and compiles the Average Wholesale Prices for prescription drugs to use in MSA proposal calculations.
  • They are also well-versed in physiology, anatomy, pharmacology, clinical standards and practices, healthcare privacy regulations, and WC guidelines and pricing practices.


The MSA Proposal Review

After the relevant medical and legal elements are clarified, the WCRC then reviews them to determine whether the MSA values suggested are appropriate in this circumstance. This review also looks for other factors that might influence their final valuation estimate. Questions they might ask include:

  •  Whether the injured party suffered from pre-existing injuries that might affect the resolution of this injury. Recovering from a job-related knee injury might take longer if the knee was already compromised when the damage occurred.
  • Whether the claimant has other conditions (not caused by the injury) that might slow the recovery period or hamper the efficacy of the recommended medication or treatment protocols.
  • Clarification of the identities of the treating physicians. In many cases, the injuries require treatment by a series of professionals; CMS looks to ensure that the treatment plan was prepared and overseen by the treating provider.
  • Whether the pricing standards used in the proposal are appropriate for that region.

The WCRC team also reviews the details of treatment and therapy already received as an indicator of the level of treatment that may be needed in the future. This review includes not just doctor visits and lab tests but also pharmaceutical recommendations and allocations, specialist inputs, and any other factors that might influence the claimant's recovery period and the cost of future medical care. At any time in the review process, the team can send the proposal back, requesting more information or corrections for information previously submitted.


Getting to Approval

The WCRC team looks at all this documentation to determine whether the proposed future treatment costs - medical, pharmaceutical, and therapeutic - are acceptable, given the parameters and protocols required by CMS and MSA rules. When they conclude the review, they submit a recommendation to CMS about accepting the proposal and whether it protects Medicare's interests:

  •  If the team recommends a lump-sum MSA amount within 5% of the claimant's proposal, then that recommendation acts as an approval of the proposal.
  • In a structured resolution, if the recommended initial 'seed' money is within 5% of the proposer's initial deposit, then the recommendation acts as an approval of the proposal.
  • In those cases where the WCRC's recommended value differs by more than 5% from the proposal, then the team can reply with a counter-offer of a higher or lesser amount, with a detailed rationale as to why their number is more appropriate. This counter-offer allows all the parties, including CMS, to negotiate towards a case resolution that protects both the injured person and their future medical coverage and CMS.


Developing an MSA proposal requires attention to detail and extensive legal and medical knowledge. The revised Reference Guide provides a roadmap for MSA professionals to craft a comprehensive document that should move quickly through the CMS approval process.




Last month, we discussed how the lack of CMS guidance in liability cases leaves Medicare and Medicare-eligible people ('Beneficiaries') in the dark about paying for injuries and illnesses they've developed due to exposure to the coronavirus. Many companies count on those populations to make their living. Potential coronavirus exposures that occur in their place of business are now creating liability exposures if/when their clients and customers can tie those exposures to their time within those walls. Those company owners who want to both open their enterprise and reduce their risk of liability for inadvertent COVID-19 exposures should review their reopening processes carefully and build in as many "virus-avoidant best practices" as possible.


It's No Longer Business as Usual

It's hard to know where to start reopening a business that has been shuttered since the onset of the COVID-19 pandemic. Every company that routinely welcomes paying customers onto their premises must make accommodations to keep them safe from a potential coronavirus exposure. Employers are doubly taxed: they must provide as safe an environment as possible for their workers and their customers. Not only could an outbreak at their site create resonating workers’ compensation issues, but it also poses a risk of liability issues when it's a customer who falls seriously ill with the disease.


And those concerns layer over the challenges arising when trying to resume 'normal' operations:

  • Previous vendors and suppliers may not be available, requiring finding new ones or changing out products that are no longer feasible.
  • In many shops, 'social distancing' requires the reorganization of shelving units, dining tables, services bars, and even cash registers.
  • That reorganization often results in fewer 'productive square feet,' which will reduce revenues by a comparable amount.
  • In many jurisdictions, mask-wearing is the order of the day, so customers (should) know to do that. In those jurisdictions where no such mandate exists, business owners must also determine to what extent they want to impose the restriction and how they plan to enforce that new rule.

With so much to think about, it seems apparent that moving forward requires a well-thought-out strategy that balances every contingency, identifies and manages each risk, and maximizes as much as possible the profitability of each transaction.

Managing the Risks Inherent in Reopening During the COVID-19 Pandemic

Perhaps the biggest threat to the reopened company is the risk of inadvertently causing a COVID-19 outbreak. Company owners must manage two separate but similar concerns to ensure their enterprise isn't the next COVID-19 hot spot:


Protecting Workers

Some businesses have a higher risk of triggering an outbreak simply by their nature. Restaurants, hotels, gyms, and spas, to name just a few, must welcome the general public to stay in business. Their workers, therefore, are exposed to whatever contagions their customers carry. The close physical proximity and being indoors contribute to the spread of the virus among patrons and staff alike.


From a workers’ compensation point of view, the answer to one specific question arising from the situation has the potential to impact every employer in the country:


Is COVID-19 an 'Occupational Disease'?

Traditionally, the employer's workers' compensation (WC) insurance policy covers both injuries and 'occupational diseases,' when those arise within the 'course and scope' of the job. The coronavirus and its consequent disease, COVID-19, present a new wrinkle in the discussion about what constitutes 'course' and 'scope' of employment.


'Occupational diseases' typically develop when workers are exposed to toxic substances or materials inherently contained within production processes or employment practices. Firefighters and coal miners frequently develop occupationally-caused lung diseases related to the inhalation of toxic fumes and dust. Healthcare workers often contract the highly infectious conditions they find in their patients, such as tuberculosis or hepatitis.

The coronavirus is not an 'occupational disease' in the traditional sense because its contraction isn't limited to a specific occupation or job. Instead, because it spreads via airborne particles exhaled wherever an infected person might go, it can infect anyone in any position when there are insufficient protections in place to prevent that infection.


The hospitality industry is particularly vulnerable to triggering coronavirus outbreaks because of the frequency of customer turn-over. The more people there are entering the business, the higher the risk that one of them is an asymptomatic person carrying the virus, who, thereafter, unknowingly infects a staff person. Because hospitality workers must - by the nature of their work - interact with potentially infected customers, they can argue that their subsequent infection was, indeed, contracted within the 'course and scope' of their job. Their healthcare costs should be born by their employers WC insurer. The argument tries to move the job-related COVID-19 infection into that class of employment-related 'occupational diseases' that enjoy a "presumption of compensability:" if you contract the virus from a presumed work-based source, then your related healthcare costs are expected to be covered by the WC insurer.


Not surprisingly, there is a lot of push back against the 'presumption of compensability' that limits the employer's opportunity to point out the worker's other possible transmission points (family members, i.e.) and thereby deflect the burden of added COVID-19-related WC premiums.

  • Data retrieved from its 38 states by the National Council on Compensation Insurance (NCCI) notes that the cost of increased WC premiums driven by COVID-19 infections could rise to as much as $81 billion a year. New York states' estimate (not included in the NCCI study) sets that cost at $31 billion just within its borders, which represents an increase of over 350% over its 'typical' annual WC bill.
  • Others argue that coverage for COVID-19 isn't contemplated in the 'Grand Bargain' that established the concept of 'workers’ compensation' in the first place. Because a COVID-19 infection doesn't arise from any specific job but instead floats into the workplace arbitrarily on the breath of a customer, client, or some other party, it shouldn't be considered eligible for coverage by WC insurance.

Also, not surprisingly: those arguments and more are now the focus of discussion for more than one state government and WC insurer.


Protecting Customers

We noted last month our belief that COVID-19 cases will trigger thousands of liability lawsuits, as infected sufferers look for ways to obtain and cover the cost of the healthcare services they need. For sufferers who are also 'Beneficiaries,' those lawsuits will take on added significance. This population is at risk for worse infections with more severe symptoms and often take longer to recover. Further, because they often also have underlying health conditions that complicate their COVID-19 case, they are also more likely to suffer permanent damage and injury. In those cases, they will need COVID-19-related healthcare services for the rest of their lives. Lawsuits filed by members of this population will provide the necessary evidence to ensure that CMS doesn't bear the brunt of those added COVID-19-related expenses in its future healthcare payments. By bringing the suit, Beneficiaries will have access to a separate healthcare fund without imperiling their future Medicare healthcare coverage.


Sensible Precautions for All Populations

Fortunately, implementing safeguards and precautions to prevent business-based coronavirus infections protect all populations as much as is possible, considering what is currently known about how the virus spreads. Today's best business practice is implementing a virus-protection plan to avoid getting hit with unnecessary WC or liability claims for COVID-19 infections.


There are two fundamentals to consider when developing your plan: how to make the physical plant safe, and how to modify business practices to keep workers and customers safe.


Steps to Safeguard Your Workplace

A walk through the place of business and a review of current practices will each reveal vulnerabilities that might cause a virus exposure. Manage whatever threats exist, then change your policies to prevent those risks from emerging again.

  • Studies indicate that social distancing prevents transmissions, so move tables, desks, chairs, seating areas, etc., to sit at least six feet apart.
  • Studies also indicate that masks work by providing a barrier between an infected person and their uninfected neighbor. If you don't have a mask policy in place, develop one that includes both staff and customers, and enforce it rigorously. One or two lost customers aren't worth the costs incurred by triggering a virus outbreak.
  • Sanitation matters more now than ever.
    • Ensure that cleaning supplies kill viruses; not all do, despite their claims to the contrary.
    • Develop company-wide protocols for sanitation management throughout the business day and then monitor those activities every day.
  • Implement a tracking system for both employees and customers, so you know who's been inside your company doors. Tracking slows the spread of the virus by notifying those who may have been exposed and allowing them to isolate themselves so they don't pass it on.
  • Develop a Virus Response Plan that details how your enterprise will react when it discovers a possible virus exposure. It will guide your workers as they work to reduce the likelihood of further infection. At the least, it should detail:
    • How to determine when and where the exposure occurred so practices can be changed to avoid the circumstance in the future;
    • A listing of who might have been exposed, including the identification of both staff and clientele. All should be notified as quickly as possible.
    • Which agencies should receive the report of the outbreak, which might be some or all of your local, regional, and nationally based entities.
    • Most importantly, the plan should lay out how to return to operations with new systems in place to prevent a similar exposure.


It's abundantly clear that covering the healthcare and related costs of just one COVID-19 case are high, and that they become exponentially greater when staff and customers are the sufferers. Establishing appropriate safety precautions throughout the enterprise to protect both staff and customers is imperative for every business struggling to keep afloat in the wake of the COVID-19 pandemic. It's always better to prevent a disaster than recover from one, and all too often, a COVID-19 outbreak has caused the demise of many excellent companies. Don't let yours be one of them.


Decades of continuing silence on the role of Medicare Set Aside (MSA) accounts in liability cases may prove disastrous in the face of the injuries and damages caused by the COVID-19 pandemic. America's aging population is growing, and more people reach Medicare-eligibility every day. Any injuries they suffer due to the virus and its debilitating disease will become an issue for the Centers for Medicare and Medicaid Services (CMS).



Liability Cases Raise Different Issues than Workers Compensation Cases

The challenge is this: any entity - any business, any service provider, and even any individual - could be found liable if something they did or didn't do is proven to have caused a COVID-19 infection in a successful plaintiff. When that plaintiff is also a Medicare recipient or is Medicare-eligible (Beneficiaries), resolving the liability case should also include the establishment of an MSA to ensure compliance with the Medicare Secondary Payer Act (MSP) and to protect CMS from paying for injuries that are rightly attributed to that primary payer.


However, that there are no clear rules in place regarding MSAs in liability cases will create havoc for all entities involved in the issue:

  • plaintiffs who want to ensure long-term coverage for lingering, COVID-related injuries;
  • defendants who intend to accept their responsibility for causing those injuries, and
  • CMS, if it has to pursue primary liability parties who aren't covering the plaintiff's costs.


There’s Not So Much Awareness of MSAs in the Liability Community

Most employers and insurers are aware of the MSP obligations mandated when Beneficiaries are injured on the job (although many entities are looking to limit that liability for workers who contract COVID on the job). However, the general public may not be mindful that those mandates also apply to non-WC cases where a person or entity is deemed responsible for injuries occurring to a Beneficiary outside the workplace setting. The majority of the general public may not have ever heard about the MSP. They aren't aware that the Act requires no-fault and liability insurance to be the primary payer for accidental or 'other situation-related health care services, claimed or released' when the injured party is a Beneficiary. When these cases arise (and they will), those entities grappling with confounding legal concerns will be even more baffled by a lack of CMS guidance on the wisdom of including MSA calculations for the liability lawsuit.


Making things worse are two aspects of the pandemic that are converging ominously:

  • the rising number of current and eligible Beneficiaries, and
  • the rising number of COVID patients who are also Beneficiaries.


The American Population is Aging

The 'Baby Boomer' generation, those born between 1946 and 1964, is aging, and now numbers more than 52,000,000. In 2011, the first wave of these 'Boomers' hit Medicare eligibility, and the last of them won't cross that threshold for another nine years. Further, of the 52 million, approximately 45 million are retired and drawing their Social Security Benefits. Those who contract the COVID-19 virus and require medical help to recover from it will have to find another healthcare resource to pay for those services. For many, that identity of that resource may only be revealed in the courtroom.


Non-Workers are Beneficiaries, Too

Almost everyone in that older population group has the potential to be a Beneficiary plaintiff:


  • As customers and clients - Several classes of senior populations pose unique circumstances in the event of a COVID-19 outbreak:


    • Senior homes - The startling number of COVID-19 deaths occurring in nursing homes and assisted living facilities underscores the magnitude of the problem for liability cases: those losses account for as many as 40% of all the COVID-19 deaths in the country. Potentially, each of those deaths also represents a wrongful death lawsuit. Senior home residents who recovered from the disease but still suffer from lingering symptoms are also potential plaintiffs in cases filed against the facility where they contracted the illness.


    • Subsidized housing residents - Many seniors live in subsidized housing complexes across the country, and in some cases, apartment management stopped the services that regularly checked in on them. Those stoppages have led to unnecessary deaths, certainly, and caused illnesses to worsen, again impacting the need for long-term healthcare support.


    • Participants at public gatherings - despite warnings, many people have elected to gather without masks in public places, such as at the Sturgis Motorcycle Rally in Sturgis, South Dakota, and in the many senior communities in Florida and along the Gulf Coast. When attendees are also Beneficiaries, their only obvious option for medical services may be CMS, but there will also be claims of negligence against the businesses and areas that hosted them. These claims will consequently raise many, many assertions that event participants 'assumed the risk of illness' when they attended, knowing that COVID-19 could be in the vicinity.


  • As business colleagues - Most businesses deal with other entities, and long-term relationships tend to be more relaxed. Interactions that never posed threats in the past may be overlooked as potential transmission threats now.


  • As personal friends, too - Friends and neighbors, trusted for years, are now only as safe as their last interaction with their friends and neighbors. In those cases where the only resources available to cover long-term medical care are through a lawsuit, even these relationships become vulnerable to a legal challenge.


Still No CMS Guidance on MSAs for Liability Cases

The CMS has promised some form of 'guidance' on using MSAs in liability cases for years. In its Fall 2018 notification, CMS indicated that the new rules would give Beneficiaries better opportunities to manage their future healthcare needs while also protecting Medicare's interests. It suggested the new guidance would be issued sometime in 2019. That didn't happen.


Instead, in 2020, an updated notice stated that the new rule would 'clarify' that it would be the Beneficiary's responsibility to protect Medicare's interest in the liability suit and that more information would be made available by August. August has now come and gone, and still, no word from CMS about the liability MSA question.


The delay is, however, causing its own angst:


  • For some, no guidance is good guidance. The ClaimsJournal, an adjunct of InsuranceJournal, asserts that mandating an MSA in every liability suit involved Beneficiaries would be unnecessarily burdensome on the parties within those lawsuits. Their analysis suggests that such a rule would be beyond the scope of CMS's authority and that applying the mandate would dramatically slow the progress of those lawsuits to a swift but fair end. In the interim, Beneficiary health might deteriorate, which would (in the event the parties can't reach a settlement) compel Medicare to assume the responsibility for those costs, as well as the expenses incurred due to the original injury or illness.


  • For others, any statement by CMS on liability MSAs is, at this point, will be as confusing as no statement at all. In its proposal, CMS could assert any number of parameters, including who would be responsible for what, where limitations and exclusions might lie, and whether there will be financial thresholds to meet before filing. Those unknowns raise their own questions. Additionally, the CMS proposal should also contain a procedure or process to follow to become compliant. The questions raised by the 'theoretical how' and the 'practical how' are many. Not insignificantly, 'when' these new rules come into play is also a question; it often takes months or years to get all the systems in place, and there's usually a long and significant learning curve required for everyone involved.


Clearly, the process of designing and implementing an MSA strategy for liability cases involving Beneficiaries is complex at the best of times. The COVID-19 pandemic makes these, arguably, the worst of times to be mandating the use of such a complicated tool in an entirely new class of cases. However, the MSP is clear: Medicare is the mandatory secondary payor for Beneficiary healthcare costs caused by a third-party. Failing to clarify that point in any Beneficiary-related liability lawsuit threatens the stability of that case resolution, and/or opens CMS to risk of using Medicare funds to pay for another entity's errors.


What we do know is this:


  • The MSP is still the law and applies to any case where the plaintiff is a Beneficiary.


  • The large number of beneficiaries who have fallen ill with the COVID-19 virus suggests that at least some of them will file lawsuits against the entities that they believe are responsible for their illness and the costs of the damage it caused.


  • Even without CMS's official guidance on the specific liability issue, making an effort to get clearance from CMS for an MSA within the COVID-19 liability lawsuit would be best practice:


There are (most likely) a lot of Beneficiary-related, liability-based lawsuits on the way. Planning now to manage a possible CMS MSA application within them will save all parties time, money, and stress.

Incoming Changes to WCMSA Activities

Even in the face of the health and civic challenges the country is enduring, the Centers for Medicare and Medicaid Services (CMS) maintains its pursuit its institutional goal of keeping its constituents current with evolving standards. Recently, the CMS issued two new directives, one for MSA calculations and one for improved MSPRP portal functionality, which became or will become operable on April 25 and July 13 of this year, respectively. Readers are encouraged to update their practices and policies to reflect the changes.


New 'Life Table' for MSA Life Expectancy Estimates

On April 25, the Agency switched over to using the 2017 version of the United States Life Tables for calculating life expectancies, as the National Vital Statistics Report publishes those. The 2017 table replaces the 2016 schedule, which has been in official use just since October 12, 2019. The newer version, reflected in Manual Version 3.1 released May 11, 2020, reflects the differences in life expectancies revealed by 2017's final mortality data.


The CMS uses life expectancy tables for many reasons, only one of which is to calculate an estimated term for the duration of a Medicare Set-Aside Account (MSA). The life expectancies' statistical values provide guidance for MSA participants to determine the number of years and the projected value of costs to include in the overall calculation of the MSA financial reserve.


Many Uses for Life expectancy Data

The availability of an MSA is an enticing option for anyone who suffers a debilitating injury that will impede their earning capacity for their foreseeable future. The account will ensure that the costs incurred because of those injuries will be paid for by the entity legally responsible for making those payments. Only a small percentage of Medicare-eligible or recipient people will suffer injuries that will require the establishment of a life-long MSA. At this time, only those injured on the job and who have Workers’ Compensation claims are specifically identified as appropriate candidates for an MSA. However, CMS has recently been considering also adding cases involving injuries legally caused by neglect or intention (claims arising from 'liability' cases) to their roster of 'encouraged' MSA candidates.


But, as an agency, CMS also has an interest in establishing an MSA for any person who may need long-term funding for injuries AND who is also Medicare-eligible or will be eligible for Medicare within two years. By law, CMS is responsible for funding healthcare costs for millions of current and future Medicare beneficiaries. The Agency must manage the funding received for that purpose to allow for comprehensive coverage as its recipients need it, and that pool of beneficiaries is growing as the general population ages. Also, by law, however, CMS is NOT responsible for covering healthcare costs for injuries or damages caused by a third-party, such as injuries that occur in a job-related accident or car crash. Any healthcare costs attributable to those injuries must be paid for by the legally responsible entity. To establish an MSA for any reason, the claimants must clarify which entities are responsible for covering costs of specific injuries or damages, to ensure that Medicare doesn't inadvertently pay for something that is rightly the responsibility of another person or company.


Data Reveals Significant Changes

CMS's capacity to properly manage Medicare payments is becoming more complex, too. In just the last ten years, the number of Medicare recipients has more than doubled, rising from 11.1 million in 2010 to over 24 million today. By 2060, the number of Americans aged 65 and over will grow by 23% (up from 16% in 2018). CMS will be responsible for funding the healthcare services for most, if not all, of them. During that same decade, as well, improved living standards and evolving healthcare capacities are also helping Americans live longer lives, and the healthcare funding supplied by CMS will have to cover those extended lifespans as well. Accordingly, when Medicare-eligible people or recipients are injured, their potential lifespan - the number of years they expect to live - becomes an integral factor in the calculation of their long-term healthcare costs.


According to the Vital Statistics Report, between 2016 and 2017, overall life expectancies declined by .1, from 78.7 years to 78.6 years, for whites in general (primarily white males) and non-Hispanic whites. It did not change for blacks, non-Hispanic blacks or Hispanic populations, however. MSA applications submitted on or after April 25, 2020, are required to be calculated per the new statistical measurement. Considering the size of the Medicare-eligible population, even small drops in lifespan can make a difference in long-term CMS funding decisions.




Making CMS Recovery Cases Easier to Manage


As readers know, CMS works hard to recover payments made on behalf of Medicare beneficiaries that should have been made by other parties or entities. The recovery of unnecessary fees is critical to the mission of CMS, which must limit its healthcare coverage payments only to legitimate Medicare and Medicaid beneficiaries, including those who have established a Workers’ Compensation Medicare Set-Aside Account (WCMSA). The CMS Benefits Coordination and Recovery Center (BCRC) will open a recovery case to retrieve funds when the Agency makes provider payments erroneously or as a conditional payment made before the establishment of legal liabilities.


To facilitate the recovery action, the BCRC provides an online portal - the Medicare Secondary Payer Recovery Portal (MSPRP) - through which third-parties and MSA case participants can communicate about recovery case data and details. Cases that originate through the BCRC and through the Commercial Repayment Center (CRC) can be managed through the portal. Users of the portal include claimants, their representatives, attorneys, insurers, beneficiaries, and recovery agents. The portal allows users to interact digitally with the Agency about the case, whether they're requesting updates, contesting claims, or signaling that a resolution has been reached, among many other actions.


In recovery cases, the Agency has begun proceedings to retrieve reimbursement of previously made payments from the claimant or party that is ultimately responsible for paying an obligation. To maintain current recovery-related communications among the parties and with CMS, users can access the portal to retrieve files needed to support their claims or record their activities. The recovery case file is organized around the various actions taken by both the Agency and case parties and includes tabs related to:

  • payment information,
  • electronic payment histories,
  • refund information,
  • letter activities (mail),
  • waivers, redemptions, and
  • compromise information, and
  • final conditional payment processes.

The portal helps users find the information they need to respond to, defend, and resolve the recovery case.


Currently, however, the portal isn’t particularly user-friendly. Users haven't been able to view or print documents contained in the Letter Activity tab, which has hindered their capacity to maintain a complete file of documents issued by the Agency, or track case developments. CMS has recently remedied that situation, however, and, as of July 13, 2020, users who access the site through double authentication procedures will be able to both view and print the documents they seek through the portal's Letter Activity tab.


The Letter Activity tab is rife with crucial case data because it contains all the documents generated by the Agency concerning the claim. Maintained chronologically, each record sets out information about the status of issues arising within the materials, including the opening date of the document, its closing date, and a sent date if the Agency moved the matter onto another agent or office.


Accessing the portal to view and print documents gives users better control over the information they need, so there is no longer any confusion about the opinion or standing of the CMS at any point within the recovery case. The CMS issued version 4.8 of the MSPRP User Guide on March 30, 2020.












For America’s employers, the COVID situation is creating havoc. Those who have shuttered their businesses for the duration of the crisis may not be able to open again once it subsides. Those who are open, however, especially those that offer essential services like grocery stores, are finding themselves facing workers’ compensation (WC) concerns that are unique to this pandemic. These businesses are already facing the challenges that typically arise from public crises and their subsequent recessions. Now, they must also navigate the new world of work-related injuries and illnesses directly related to the COVID-19 virus itself.


Nowhere is that concern more significant than in those companies whose workers are on the front lines of the challenge.


Healthcare Organizations

The healthcare industry, as a whole, is reeling from the effects of managing the virus. Not enough supplies and too many patients have overwhelmed entire healthcare systems. As the pandemic evolves, healthcare workers themselves are contracting the disease caused by the virus, which reduces the number of people who work in the clinics and wards. Further, the virus is not only impacting the capacity of the medical professionals, but it is also compromising the capacities of lateral and support services upon which they rely, such as lab services, clinic technicians, and even the janitorial crews. Employees working in a healthcare setting or with healthcare professionals are exposed to a heightened risk of being infected with the virus.


First Responders

Community services providers aren't immune from the concern, either. Firefighters, ambulance personnel, and distributed healthcare clinic workers, as well as the staff who work with them, are also exposed to the virus through their work. Frequently the first on the scene of a healthcare crisis, these workers face any number of threats posed by the environments in which they find their patients, in addition to the threat posed by the virus, all of which increase the likelihood that they will suffer an injury or illness while on the job.


Essential Services Personnel

Services deemed 'essential' are those that provide the goods and services people need simply to survive even when there isn't a viral threat in the air. Grocery stores, gas stations, pharmacies, and the like provide vital supplies that keep communities functioning. However, every day, their workers face health threats posed by shoppers who are infectious but not yet symptomatic, a circumstance that is unique to COVID-19. Without knowing they are infected, these workers can infect their coworkers and customers for days before they become symptomatic themselves.


The organizations and businesses that employ these vital workers must now attempt to prevent the virus from causing illness or injuries in their workplace. The fact that there is still much that is unknown about the virus and few proven resources available to avoid or combat it makes their jobs that much more difficult.


Consequently, today's employers are not just facing increased WC and SSDI claims due to the unemploymentcaused by the coronavirus, but they are also facing a new wave of a different type of WC created by the health threats caused by the virus.


COVID Will Change WC Litigation

The unique and evolving constellation of symptoms and conditions caused by the virus are not just confusing medical personnel, however. Legally, there are new challenges presented by the virus that have never before been seen by the WC and legal systems. As cases flowing from these issues mature and claimants seek support as they recover, their claims will most likely change how work-related COVID cases - and cases originating from the pandemic itself - are managed in the legal setting.


Legal Cause Concerns

One fundamental legal mandate will trigger much of the incoming legal deluge: proving 'cause.' The legal system flows from a simple relationship: cause and effect. Lawyers must identify the cause of a legal issue and connect the damage that it creates (its effect) directly with the entity presumed responsible for the action or situation where the injury or damage occurred. Defenses to the 'cause' element center on two possible options: nothing the defendant did (or did not do) caused the injury, and/or the claimant themself contributed to the cause of their own damages.


COVID cases confound this fundamental legal concept because, in many cases, there's no way to prove with certainty that any one location or exposure 'caused' the transmission of the virus. Yes, healthcare personnel are more likely to contract the virus because of their exposure to it through their occupation or workplace. However, science has determined that asymptomatic people are spreading the disease - people who show no evidence of being sick. So, while, yes, healthcare workers are more likely to contract the disease at their workplace, they also live in a community where the virus is active. These workers are also susceptible to contracting the virus through their interactions at home, while at their grocery store, or any place where they may come in contact with an asymptomatic person.


The virus's capacity to spread via non-symptomatic people makes it extremely difficult to assign 'cause' to one specific entity or location. This challenge to proving 'cause' poses new questions to all parties to a WC case:

  • For WC claimants, the legal challenge moving forward will be to establish, with certainty - that their COVID-related injuries or damages are directly connected to their actions on the job.
  • For employers, especially healthcare employers, the challenge is that virtually every staff-person-COVID case will have an assumption that it is work-related. Companies will find it difficult, if not impossible, to determine where, if not at work, the claimant was exposed to the disease.
  • For insurers, the inability to determine the specific cause of the claimant's illness or injury will undoubtedly create economic challenges as the number of healthcare-based, COVID-related cases increases.


Legislative Changes

As if the legal challenges aren't tricky enough, WC cases will also face challenges posed by the increased flood of local, regional, and national legislative efforts to stem the spread and contain the damages caused by the virus. Every state has been scrambling to manage their specific COVID crisis, with many passing laws and emergency regulations on a weekly (or sometimes daily) basis.


However, these short-term legislative fixes address only the crisis of the day. In many (if not most) cases, their potential long-term impacts have not been fully vetted, and those who act in accordance with the new rule may create additional challenges and liabilities in the future.


These issues and more will be the subjects of an increasing number of litigations as future lawsuits and WC claims are processed in the coming months and years.



MSA Litigations May Also Increase

Increasing numbers of COVID-related WC claims will almost certainly prompt a rise in MSA applications, as claimants seek as much coverage as possible for future services related to their COVID injuries. In these cases, it will be even more important to consider the interests of the Centers for Medicare and Medicaid Services (CMS) when crafting those MSA documents. As the Mandatory Secondary Payor, CMS is not authorized to spend Medicare resources on health conditions caused by or the responsibility of a third party. The 'COVID cause' concern will pose challenges in these cases, too, if there is an insufficient declaration of cause in the MSA application.


(On a side note, the COVID crisis may also trigger a rise in Social Security Disability Insurance (SSDI) claims, too. The number of those cases also rises in the aftermath of a societal crisis. These SSDI claims will also be plagued by the 'COVID cause' challenge insofar as science has yet to determine if the virus can cause permanent disabilities as well as as-yet-undiscovered injuries and illnesses.)


The COVID-19 virus has already caused countless job-related injuries and illnesses in businesses and industries across the country. It is on track to generate thousands more before healthcare and scientific resources can fully contain it. Even without the myriad of legal challenges it is engendering, the related WC claims it will generate will also trigger the demand by both injured parties and the CMS to develop comprehensive MSA applications to manage the costs of covering those injuries. As the country works through both the pandemic and its ensuing recession, the coronavirus of 2019-2020 will almost certainly restructure how America's workers' compensation and Medicare Set Aside sectors operate in the future.


Even before the COVID-19 virus situation was declared a global pandemic by the World Health Organization (WHO), world events indicated that a future recession was possible. Now that we are living amidst the full force of the COVID-19 effect, it seems like a recession is inevitable. Further, the high numbers of newly unemployed workers and shuttered businesses indicate that any recession that might emerge during the pandemic will be more severe than it would have been without the virus surfacing. The whole situation makes it difficult for business leaders to know what to expect once the COVID threat subsides. However, there are lessons to be insights to be gained for those who take the time to evaluate how the global community experienced and managed past recessions.


Swift, Massive and Unrelenting

The origins of the onset of the pandemic remain unclear; scientists only recently learned that the first two American deaths attributable to the virus (on February 6 and 17, respectively) occurred well before the first reported such death (February 29). If confirmed, it means that the coronavirus has been in the U.S. longer than previously believed and that its spread is wider than previously asserted. That assertion would help to explain the astonishing speed with which the virus overtook many U.S. cities and communities. As of this posting, the number of reported cases in the country tops 850,000, and the number of deaths caused by the virus is over 50,000, all having occurred in less than three months.


The earlier transmission date of early February also indicates that more people have probably contracted the coronavirus or are at risk of suffering from it than was previously thought. Making the situation worse is the vast array of unknowns still surrounding the disease, its spread, its treatment, and its actual toll. Without a clear idea of where the virus is spreading or what methods are truly containing it, government leaders can't re-open their communities for fear of triggering an even larger pandemic much closer to home.


Early Responses Also Cause Chaos

The most comprehensive response to the virus (so far) has been to order people to remain 'safer at home' to stop unintended viral transmissions through inadvertent social contact. The mandate became necessary in early 'hot spot' locations, including cities in Northern Italy, across Europe, San Francisco, and New York City. In those situations, the calamitous rise in the volume of critically ill patients quickly consumed all available medical resources, which, in turn, lead to more deaths because there were no resources left available to treat those later arriving patients. To prevent this situation in areas where the rise in case numbers was slower, many communities around the globe elected to tell their constituents sooner rather than later to stay home so that they did not face the unacceptable risk posed by a lack of sufficient medical interventions.


The consequence of the 'safer at home' mandate is that millions of people are now quarantined in their homes, unable to leave except for 'essential' reasons such as grocery shopping or if their work requires them to be out. Those who can work from home are now doing so. For the millions who can't, the stay-at-home mandate also means the loss of their job.


In the U.S., some 26,000,000 people have filed for UI (UI) as of late April, as the shops, restaurants, and services companies that employed them were forced to close their doors. Too many of those workers were existing on a paycheck-to-paycheck basis, meaning they don't have the resources they need to sustain their living situation while the pandemic runs its course. The UI funds will allow them to pay their rent and buy food until the situation lightens, their previous jobs become available again, or they can find another line of work.  Unfortunately, for many of them, the old job will be forever gone, and there will be no other resource available to assist them after they exhaust their short-term unemployment benefits.


For workers already suffering from a work-related injury or disability, the current crisis is creating an even more dire situation. Workers who are currently unemployed or receiving disability coverage because of an on-the-job event have been working to regain their health and capacity to return to their occupation. With so many healthy workers now available to take that job as soon as it becomes available again, these workers now find themselves essentially 'unemployable.' Even when they are strong enough to return to the workforce, the current situation indicates that there will be no jobs available for them to take. What will they do when that day comes?


The analysis of events that occurred after previous recessions and economic downturns suggests that many of today's unemployed workers will file worker's compensation (WC) claims or, if appropriate, social security disability claims (SSDI) to fill the void created by no job and exhausted UI benefits. Further, that research also shows that an increase in both WC and SSDI claims often also leads to an increase in requests for Medicare Set Aside accounts.


The Past Informs the Present

It's always helpful to look at relevant past events to make sense of current happenings. The economic crisis generated by today's COVID-19 pandemic is certainly similar to the housing crisis that caused the 2007-2009 Great Recession, so social responses to that situation can provide insights and direction for today's business leaders.


The message in brief: expect an influx of both UI and SSDI claims, as well as a swell of MSA applications. Data gathered over time reveals that the number of both UI and SSDI claims rose during the last seven recessionary periods, all of which occurred during the past five decades. Simply put, people who can't find work will seek alternative resources to fill that economic void. That pivot away from a work search to alternative financial supports usually takes them to either WC or SSDI options, and, in both cases, the opportunities to file an MSA application grow.


Newly Unemployed Workers:

Many employees will continue to work through an on-the-job injury if they can, prefering to retain their incomes even if that means slowing their recovery. These now unemployed workers may not be able to return to their old jobs, nor are they likely to find new work as stronger, healthier competitors vie for what is sure to be a limited opportunity for employment post-pandemic. These former employees may turn to WC resources as an alternative to returning to their old job or looking in vain to find a new one. They may also see the value of establishing an MSA within the case to ensure their health needs are covered regardless of the state of the future global economy


SSDI Recipients

In a similar vein, workers who are already collecting SSDI benefits may find themselves also blanked out of any work they might have taken or returned to as healthier applicants compete against them for that work.

Further, many of them may now also qualify for an MSA if they've been on SSDI for more than two years. This option is available regardless of their age. In 2008, the number of displaced workers who applied for SSDI benefits topped 2.3 million, which was the record at that time.


Research conducted after the Great Recession receded confirmed that many workers who struggled through that event filed either or both WC and SSDI claims to replace lost wages and healthcare coverage. The population receiving federal disability benefits grew from 7.6 million in 2009 to 8.9 in 2013 because their combined health and employment challenges provided the opportunity to access these resources rather than attempt to return to work. And    F    subsequent research indicates that 'most' Medicare MSA claimants are eligible because they have been on SSDI for the requisite two years, and not because of their chronological age.


Impact on CMS

This research suggests that many of today's unemployed workers will be turning to both UI and SSDI for alternative financial support during and after this pandemic. That influx of cases will significantly increase the already high demands being made on UI and SSDI providers, as well as on the Centers for Medicare and Medicaid Services (CMS). Making things worse for CMS: the Agency is already facing massive budget challenges as the number of workers who continue to pay into the system is shrinking while the number of those taking resources out of it is rising.


These unique and difficult challenges suggest that, as a response to heightened demand and reduced resources, the Agency will also become significantly more stringent regarding MSA compliance practices. Its efforts to enforcing the Mandatory Secondary Payor Act will almost certainly require more stringent attention to detail in every MSA case to prevent CMS from shouldering any inappropriate economic burdens that belong to other entities.

In 2017, when the Center for Medicare and Medicaid Services (CMS) updated its Medicare Set Aside (MSA) Reference Guide, it added a provision that allowed a one-time opportunity to request an ‘amended review' of a conditionally preapproved MSA account. When a case met the required elements of the new rule, claimants and carriers could re-submit their MSA proposal based on evidence of circumstances that came to light after the initial submission was approved. Over the following three years, experience with the amended review process has provided insights into CMS decision-making, as well as illustrated when making such a request is advantageous to each side of an MSA case.


Clarifying "Re-review" vs. "Amended Review"

CMS is offering the new amended review opportunity in addition to the already standard 're-review' of an approved MSA agreement.



The opportunity to request a re-review of an approved MSA has always been part of the MSA process. WCMSA Reference Guide v3.0 §16.1. It applies when there is an 'obvious error' in the calculation of the value or documentation of the MSA case that changes the value of the MSA account, and that the parties discovered the error only after approval of the MSA application. The reviewed submission will correct the mistake(s). In a re-review case, the underlying facts of the case don't change and the corrected file assures CMS of the protection of its interests as a secondary payer within the case.


Amended Review

The opportunity for an amended review arises when the facts of the case have changed, and those changes now alter the value of the MSA allocation by at least 10% or $10,000. WCMSA Reference Guide v3.0 §16.2.Parties can only request the review when their Workers’ Compensation case (WC) has not settled but continues in litigation for more than 12 months (one year) and less than 72 months (six years) after approval of the original MSA. (In October 2019, CMS extended the time window for submitting a request from four years (48 months) to the new six-year standard.)


The amended approval opportunity aligns the CMS with several state laws that allow for re-opening the WC case in the event relevant health and healthcare care conditions change after that case has closed. While that opportunity provides for changes to the WC case itself, there was no such opportunity available to make consequent changes to the attendant MSA, when such an account was open. With this new CMS provision, plaintiffs and defendants can modify their MSA agreement to reflect the altered facts of the WC case.


Possible Outcomes of an Amended Review

The amended review process facilitates two equal goals: to protect CMS from paying for services that are rightly assignable to the primary payer, and to assist in the resolution and closure of long-term legal cases. It reflects the reality that circumstances change over time, and that 'final resolutions' must also often be fluid. The amended review process allows CMS to take into account those relevant MSA case factors that emerged after the MSA proposal was initially approved and that now might materially change its outcome.


Protecting CMS

Per the Mandatory Secondary Payer Act (MSP), CMS is liable for the healthcare costs of injured beneficiaries (or soon-to-be beneficiaries) only after all other 'primary' resources are exhausted. In the case of most MSAs, the MSA document itself clearly defines the obligations of a primary health care resource to an injured worker, and settled medical practices provide the guides needed to establish those medical cost parameters. CMS can sign off on the MSA proposal because it is assured that the primary payers are accepting and will follow through with their obligation to cover the short-, mid-, and long-term costs of the specific injury.


In those cases that suggest an amendment is in order, the circumstances of the case will have changed, and CMS is no longer confident that it will not be asked in the future to cover costs arising from the work-place injury. In these cases, the total value of the MSA may need adjustment for one of two reasons if or when the claimant's health care needs change:

    • If medical coverage for the job-based injury needs extending beyond the established timeframe, then the MSA should be amended to reflect that reality. Here, it would be appropriate to change the MSA to reflect the primary payer's obligation to increase the account funds to accommodate the extended extra care costs.
    • If the claimant recovers faster than expected, or medical treatments have come available that reduce the time or cost of medical coverage, then the MSA value should be adjusted to reduce the primary payer's obligation. In this case, CMS must have full notification of changes in the claimant's condition. Without a complete file reflecting the actual conclusion of the WC case, CMS can't know how or when the WC case actually resolved, both physically and financially. Consequently, the claimant could face coverage challenges or denials when filing for future Medicare benefits if their new injury or condition resembles their previous injury status.


Protecting Case Participants

A qualifying factor for filing an amended review request is that the case hasn't settled. In many, and perhaps most of these cases, that failure is caused by disputes related to the type and value of future medical care and costs.

  • Plaintiffs are looking for the highest settlement value possible to ensure they have the resources necessary to achieve a complete recovery from their injuries. Their body may not be responding as quickly as expected to their treatment plan, or perhaps the original treatment plan hasn't been effective. They may have other health concerns that exacerbate their injured status, making it harder for them to recover within a 'standard-for-the-injury' time frame. In these cases, it's imperative for their health that they can access the treatments they need to recover from an injury they suffered at work.
  • Defendants (employers, insurers, etc.), on the other hand, are looking to keep long-term costs down to protect their corporate resources as much as possible. An MSA can account for hundreds of thousands of dollars, and these parties are looking to limit that value in the final settlement agreement. These companies have an obligation to their workers and shareholders to seek an MSA modification when changes in healthcare or the insured's health can redirect some of those dollars back to corporate use.


Proving an Amended Review Claim

Not surprisingly, convincing the CMS to change an already approved MSA requires substantial and credible evidence that the change is warranted. The Agency looks for 'best evidence' - those documents and records that come from an original source and that are clearly and directly related to injury care. Further, those records must prove that the initial MSA value is now off by 10% or $10,000, whichever is greater. The injured worker must prove that current circumstances justify an increased MSA value by at least 10% or $10,000; the employer/insurer must prove that current medical interventions can reduce the actual cost of care (as opposed to the approved funds set aside) for the injury by at least 10% or $10,000.


The Agency is also specific about what types of evidence can prove the adjusted claim and how to document that evidence properly:

  • The amended proposal must include line items that were also included in the first proposal and that identify the care services already provided to the injured worker. Documents that reference those services must accompany the amended proposal.
  • The amended proposal must also demonstrate where services and supports were authorized but were not required.
  • If/when those un-used services were replaced with other comparable services, then there must also be documentation of that fact, including the records of the healthcare professionals who provided or will provide the replacement services.
  • When seeking funding for new or different services or supports, then the proposal must include both a line item detailing that/those new values, as well as documentation that supports the premise that the revised healthcare support is appropriately tied to the injury.


A Prescription Drug Caution

Every requested modification of the original MSA must justify how any proposed change relates to the injury and the care and recovery of the injured worker. For prescription drugs, a difference in price in and of itself is not sufficient to justify changing the MSA, although that may be significant when a generic drug becomes available. Instead, the party seeking the change must establish that the revised pharmaceutical request addresses the medication recommendations for the specific injury, and that it meets the standards otherwise set for MSA inclusion:

  • The injured party must have been taking the original medication for two years before filing the amending request;
  • the drug must have been prescribed specifically to treat the work-place injury, and
  • the medication is being used for a medically accepted indication.
  • The revised pricing structure for the medication is presented using Average Wholesale Pricing standards. The Agency uses AWP for setting MSA values for pharmaceuticals, with generic drugs being priced lowest and brand name drugs priced highest. The AWP for most drugs sold in the U.S. is published in drug compendiums (indexes), as is the Wholesale Acquisition Cost (AWC) - the price paid by the wholesaler to the drug manufacturer. It is this cost, plus or minus discounts or further markups by the wholesaler, that establishes the amount estimated for use when determining the allocation in the proposal MSA.


Documents supporting these claims include drug prescription and medical treatment payment records dated within six months of the request, the insurer's prescription claim records, and the pharmacy benefits manager records.


For amended review requests that seek to reduce or increase the projected value of prescription drugs, parties filing the claim should detail the injured person's experience with the drugs correctly and make a direct connection between the use of the drug and the work-related injury.


The amended review opportunity provides an avenue for re-assessment for injured workers and their insurers when the case resolution details of the underlying WC case change. When handled correctly, the amended review action can ensure that injured workers retain the long-term healthcare services they need, or that insurers can recoup the MSA funds that are no longer necessary for future injury care. Considering the speed by which new medical capacities and capabilities are advancing, it’s probable that the amended review process will be pursued more frequently in the years to come.

In the Workers’ Compensation (WC) world, evaluating the appropriateness of a Medicare Set Aside account (MSA) is (or should be) a standard case management practice for any person with a work-related injury who is nearing or over the age of Medicare or Medicaid eligibility. However, because setting up the MSA in a WC case remains optional per Centers for Medicare and Medicare Services (CMS) regulations, many injured workers and their work- or insurer-based case managers elect not to submit an MSA proposal to CMS. Instead, after filing the requisite notice to CMS that a Medicare-eligible person suffered an injury at work, they then resolve the case without further consideration of the interests of that federal agency. Their failure to include CMS in those deliberations, however, may lay the foundation for significant barriers for the injured person in the future.


The MSA as a Case Marker

The primary reason for the Mandatory Secondary Payor Act is to prohibit the use of Medicare funds for medical expenses when another legally obligated person or party should bear those costs. For this reason, CMS requires WC insurers to notify it when an injured worker is also a current or soon-to-be Medicare recipient. On its end, the CMS creates a file for every injured Medicare recipient (or soon-to-be) who is or will receive payments from a group health insurer, including WC insurers. Using the resulting database, CMS can determine the primary versus secondary payer responsibilities of its beneficiaries and ensure that it is not making payments that are the obligations of those primary carriers. Once it receives the notification of this particular injury, the CMS file can reflect that their current or future beneficiary has/had an injury that is/was being managed by an appropriate third-party obligor.


Unfortunately, after the notification, there's no requirement to do more regarding the CMS, and many WC claimants don't follow up their CMS notification by also submitting an MSA proposal or otherwise reporting the circumstances of the conclusion of the case. This oversight leaves a significant gap in the CMS file since that agency now has only half a record of the injury in its archives, but no history of the resolution of that claim. And it's in that gap that so many problems can fester.


From Half a Claim to Legal Morass

From a legal perspective, that incomplete CMS file can trigger numerous challenges:

  • One element of the notification report is the submission of the ICD-9 codes that describe the injury. The notification is made (usually) toward the beginning of the case as the injury and its related IDC codes are determined.


However, as the case evolves, the evidence may reveal that some of the injuries noted are not actually attributable to the work-based incident but instead may be pre-existing or due to some other cause. The WC carrier may appropriately decline to cover those costs, so they are not included in the final settlement negotiations, nor are they covered by the MSA. The CMS file, however, retains that code as attributable to the WC injury, which can lead to CMS declining to cover its care, thereby leaving the claimant/beneficiary with no coverage by either the CMS or its WC insurer.


Other challenges can also arise when the CMS file is left incomplete.

  • Conflicting data from different sources - the plaintiff's lawyer and the healthcare providers, as examples - can cause duplicate demands by CMS for reimbursement of conditional payments, a circumstance that can trigger its own lawsuit.
  • Future injuries can also cause problems for the insured if any future CMS injury/claim reports include the same or similar codes as those submitted in the WC case. With no record of how the WC case parties managed those prior injuries, CMS can justifiably require proof that the second injury is separate from the first, WC injury, and that request will cause unnecessary delays. Alternatively, CMS can deny that second claim, believing it to be related to the previous case, which leaves the injured Medicare beneficiary with no medical coverage for their new injury.


Submitting an MSA proposal and including CMS in the WC case can alleviate these challenges.


More Than a Bank Account


Establishing an MSA is much more than just the negotiation of a settlement figure and the opening of a trust account. The process of creating an MSA provides a host of benefits for the claimant and parties to the case, both immediate and future:


In the Near-term:

The process of creating an MSA proposal generates a wealth of data for everyone involved in the case. The analysis of the injury, its physical manifestation, its medical intervention requirements, and the cost for long-term recovery all provide information that will inform the legal management of the case. With this data, the parties to the case gain the knowledge they need to come to a reasonable resolution:

  • For the WC insurer-payor, the analysis forms the basis for its resolution negotiations so it can set appropriate funding levels and manage its resources properly.
  • For CMS, the analysis included in the proposal clarifies the extent of the injury, provides a defined scope for its care and recovery, and offers assurance that its beneficiary will not require Medicare funds for treatment of this particular concern.
  • For the claimant, the MSA analysis clarifies the treatment plan for their particular injury and the cost estimate for the care and recovery period. With this information, they can settle their case and move on with their life.



In the Long-term:

After the case closes, the parties can move on to other projects, knowing that the WC case is behind them:

  • Insurers can fund the account and then close the case with a reasonable assurance that it will not require additional funding or attention.
  • For CMS, submission of the resolved case and its accompanying MSA will bring its files current with those of the case participants. The agency will know what the evidence revealed in terms of contingent liability, who is paying for what, the extent of the injuries, the prognosis for future care, and the estimated costs of that care. It also has a record of the beneficiary's health situation at the conclusion of the case and can refer back to that point in time when evaluating future claims.
  • For claimants, they can plan their future, knowing that they have the funding necessary to recover from their injury as completely as possible.


But Claimants now also have the added benefit of a clear record with CMS, which may prove essential for their future well-being. Why? Because, as Medicare recipients, they are aging, and that circumstance escalates the value of CMS to their future.


Medicare and the Aging Population

By definition, Medicare recipients are at or over the age of 65, and that population is growing. According to the US Census Bureau, the population of people 65 and over  grew by 15.1 percent in the ten years between 2000 and 2010, outpacing the growth of the population in general. This year, the number of 65+ citizens should hit 55 million and, by 2030, is estimated to grow to 70 million. It will stress the funding for Medicare to service that further growth, so it is expected that the CMS will be more stringent than ever that primary payments be exhausted before an injured person seeks financial support from it as the secondary payer.


And that growing population also grows bigger concerns. With every passing year, the risk of developing a disease or incurring another injury rises for each senior. Declining eyesight, hearing loss, and slower reflexes can all contribute to declining health or reduced capacities. High blood pressure, diabetes, compromised pulmonary systems and similar conditions can cause a variety of symptoms, and many medications can cause physiological challenges even if the underlying condition for which they were prescribed doesn't.


Further, while many diseases and conditions related to aging can also increase the risk of injuries, many otherwise healthy seniors will suffer a serious injury simply by falling in their home or community. According to reports by the Centers for Disease Control (CDC), falls are the number one reason for fatal injuries in people over 65 years and they are the most common reason for nonfatal traumatic hospital admissions. Additionally, 25% of all Americans over 65 fall each year, resulting in more than 2.5 million trips to the emergency room, over 800,000 hospital stays, and 27,000 deaths.


Often when a fall occurs in this population, in many cases, Medicare is the only available option for health care services for these seniors. An insufficient case file at CMS that fails to provide information on the resolution of previous injuries could delay receiving care for an instant concern, which can also cause complications in getting help in a timely way. That confusion can also cause the denial of the new claim, which could trigger a drawn-out battle to clarify actual eligibility for new resources. Considering that 10% of all falls in seniors cause major injuries, even a slight delay in getting care could be disastrous for the aging patient.



How Does a Current MSA Alleviate Future Concerns?

The MSA clarifies for the CMS file what those previous injuries were and how they occurred, the details of the managed treatment plan, and who paid for those services. It also encapsulates the circumstances of that injury to that resolved case and reduces the likelihood that CMS will require information about that case before authorizing resources for the current concern. Not least significant, by submitting and gaining acceptance of an MSA in a WC case, the claimant's future file with the CMS is transparent as to prior injuries so that they are eligible to receive timely and appropriate care when future injuries occur.


To date, there is no requirement to submit an MSA proposal to CMS prior to resolving a WC case. However, considering the future challenges posed by failing to do so, it seems prudent and a best practice to develop and file one in every WC case with an injured Medicare (or soon-to-be) recipient.  Not only will the process clarify the specifics of that injury, but the MSA itself will protect the worker's opportunity to receive Medicare benefits for future injuries.

In today's post, we are completing our series on the how's and why's of the Medicare Set Aside (MSA) account. Last year, we wrote about the evolution of worker protection laws, the role of third-party liability workplace injuries, and why America's Medicare system gets involved in injured worker cases.


Next, we will explore how to engage the Centers for Medicare and Medicaid Services (CMS) in an evolving workers’ compensation (WC) claim, including some of the processes to follow before, during, and after that engagement is made.

CMS in WC Cases

CMS doesn't become interested in WC claims unless the injured worker is also a Medicare recipient (or soon to be eligible), is considering settling the case for $25,000 or more, or is considering settling for $250,000 or more and is eligible/likely to become a Medicare recipient within 30 months.


Once the status of the claimant is established, then CMS will get involved in the case for two reasons:

  • To ensure that Medicare funds aren't spent for injury care when there is another, more appropriate funding source (usually primarily insurance) available. According to the Medicare Secondary Payer law, Medicare funds are available for workplace injury care only after all other funds have been exhausted; its funding source is 'secondary' to all other funding sources.
  • To track the activities of the parties to the claim to ensure the proper use of any funding provided for injury care. This oversight activity assures that spending additional Medicare funds for injury reasons doesn't become necessary in the future. Recovery from workplace injuries can sometimes take months or even years, during which time the injured party is also aging and eligible for Medicare services for other purposes. The CMS wants to make sure that support and care stemming from the workplace injury are paid for by the appropriate third party so that Medicare dollars are preserved for their intended purpose: caring for the concerns that develop in aging Americans.


Engaging CMS

Even in cases where the status of the claimant is appropriate, there is no rule that requires them to submit an MSA proposal to CMS or even to report to CMS that a Medicare-eligible claimant exists. In fact, the law requires those beneficiaries to apply for all available WC and other benefits and resources before looking for support from CMS.

The law does strongly encourage, however, that any WC injury involving an existing or eligible Medicare beneficiary 'should' be reported to CMS's Benefits Coordination and Recovery Center (BCRC). Once alerted, the agency will open a file and prepare to monitor the case.


In most cases, the WC insurance is appropriate and sufficient to cover all the costs related to the injury, and CMS will close its file accordingly. However, there are circumstances when CMS attention is required at the beginning of the case to ensure that public dollars (Medicare funds) are protected, as well as the future interests of the injured Medicare beneficiary:

  • In some cases, CMS will pay for medical services on the condition that the responsible party will provide reimbursement for those after that responsibility has been established. Conditional payments often occur when the injury is severe and significant services are delivered before determining the appropriate funding source for those invoices. When the injured party is also a senior and appears eligible for Medicare, many health care providers will provide and bill for care and ask questions about appropriate funding sources later.
  • In other cases, several entities may share liability for a particular injury, and none will be making payments until those liability estimates are determined. In these cases, CMS will compensate medical providers under the conditional payment clause, ensuring that the injured person gets needed and timely care.

The circumstances of every case will determine if or when CMS should be involved and to what extent.


In every case, however, when the injuries are significant and medical services will be necessary over a longer term, then CMS should definitely be approached to assist in establishing a dedicated funding account to cover the cost of those services. The mechanism used to monitor and manage those funds is the Medicare Set Aside (MSA) account.


Setting Up the MSA Account

Many people recover quickly from on-the-job injuries, and the immediately available WC insurance resources cover the costs of care and rehabilitation. Some injuries, though, are more severe, cause more extensive damage, or are temporarily or permanently disabling. In these cases, funding to cover long-term medical costs must be established from the funding streams that flow from the injury itself: the WC insurance and other insurance or similar financial pools.

Pursuing these funds ensures that the entities responsible for the damage cover the entirety of care needed to achieve recovery. Setting up these funding streams also makes certain that, in the case of the Medicare recipient, Medicare dollars are reserved for their intended purpose.


The mechanism used to aggregate injury-related healthcare costs is the 'Medicare Set Aside' account (MSA). This account holds the 'set aside,' injury-related funding so that Medicare dollars are not needed or sought for that purpose. Additionally, the funds allocated to the MSA do not include the funding required for reimbursement of past payments; those transactions are outside the MSA structure.  Instead, the MSA funds are for covering current and future medical and healthcare costs that are directly related to the on-the-job injury.


Estimating the Value of the MSA

Before submitting a draft MSA proposal to the CMS, parties to the case must determine what services and supports are most likely to accomplish the best possible recovery of the Claimant, and then to put an economic value on those services. The process can be fraught with challenges.


Determining the Extent of the Injuries

Every MSA is different and is based on the medical needs of the specific injured person.

  • In some cases, the injuries will require life-long supports, such as when a person is partly or wholly disabled.
  • In other cases, injuries may require extensive periods of rehabilitation and retraining, with the expectation being that the injured person will have a full recovery after completing those services.

Many of the cases that are best served by an MSA fall somewhere between these two extremes, with neither total disability nor full recovery possible. Consequently, the parties seeking to establish the MSA must review and elect the optimal types of services that will lead to the best possible outcome: some form of stability for the Claimant with as much independence and function as possible. Further, regardless of the actual or hoped-for outcome, the funding established within the MSA is expected to address all future medical requirements related to the injury.


Determining the Recovery and Rehabilitation Options

The type of injury determines the kind of care.

Acute Care

Most injured workers require some form of 'acute' medical services, short-term treatment in the immediate aftermath of the incident. These include surgeries, splinting, pain medications, etc., and are usually covered before any assignment of liability. When CMS pays these costs, it is generally reimbursed for them by the primary payor.

Chronic Care

Sometimes workplace injuries cause lingering effects that will take longer to recover from than just a few days or weeks. Injuries to systems are examples, such as when bodily organs are injured, or joints are affected. These patients often require extensive rehabilitation services, including those offered by rehabilitation specialists, physical therapists, and occupational therapists, and even psychologists. It is often impossible to know the cost of these services until the acute stage has passed, and the medical professionals are in a position to structure a prognosis. Accordingly, it can be particularly tricky to estimate these costs and the impact the services will have on the patient's ultimate recovery.

Long-term Care

In the most severe injury cases, the injured worker becomes so frail or disabled that long-term care is required, perhaps even until death. Head injuries and spinal cord injuries are often the cause of the need for long-term care. Sometimes these costs can also include the price of a care home or in-home services.


Estimating the Value of Future Healthcare Costs

Determining the value of injury-related medical costs includes not just the dollar amount but also the duration of time they are needed. After the patient stabilizes, then the medical professionals can usually estimate when, based on research and observation of similar injuries, that person will probably be as completely 'recovered' as possible. The claim management team must then ensure that the MSA includes funding to cover these requirements through to the patient's recovery.


In many cases, they use Medical Disability Guidelines to establish reasonable recovery costs and funding values. The guidelines are just that: guides. They do not state with certainty what the cost of any medical service might be. Instead, they provide a range of medical expenses and recovery time values based on extensive data collected about the same or similar injuries or conditions. The claim team can compare the specifics of the instant injury to those of similar injuries and, from those numbers, form an estimate as to what it will probably cost to bring this Claimant back to full functionality.


Once the estimated value of the recovery period is established, including all related medical, healthcare, and therapy costs, then the team can determine the value of the MSA. After creating that value, then they can develop and submit the claim to CMS for approval.


Gaining CMS Approval

There are several reasons to seek CMS approval for a proposed MSA. The most significant reason from the agency's perspective is because the submission allows CMS to review the recommended values as they potentially affect Medicare's interests. The agency reviews each submission for a variety of concerns:

  •  to ensure that every relevant medical concern has been considered;
  • that the injury requires ongoing care;
  • that the Claimant is still receiving services related to the workplace injury;
  • that the proposed treatments, including medications, therapies and other interventions, are appropriate for the injury at hand;
  • that the primary payors are actively involved in making these decisions, and
  • that the settlement amount (the dollar value that will be 'set aside' is sufficient to cover the anticipated costs.


Other reasons for creating and submitting the proposal are to bring all parties to the case current regarding the costs of the Claimant's recovery and to provide assurance to the Claimant that there will be sufficient funds available for the duration of the recovery period.


Lump-Sum or Payments Over Time?

After CMS accepts the MSA proposal, there are still some issues to be determined, including whether funding the account should be managed in one lump sum - or in parts over time.


There are two perspectives as to which payment method is optimal in any given case. Claimants favor lump sums because then they have the full amount they believe they'll need to get back on their feet. However, a lump-sum payment doesn't reflect future inflation of the cost of services and may not be sufficient to get the Claimant all the way to optimal recovery.


A structured settlement, where the funds are distributed into the account on an annual basis, is the preferred method, for several reasons.

  • It allows annual vs. lifetime spending oversight, which makes it easier to ensure that MSA dollars are spent appropriately on injury-related services within any given year.
  • It gives Medicare direction for when it's appropriate to cover medical costs that aren't related to the injury.
  • It allows for inflation adjustments so the payors into the fund can adjust their annual amount based on current costs and not projected costs.


Studies reveal that structured settlements can save the payors as much as 34% over the all-in cost of a lump sum payment.


Moving on With Life

The establishment of the MSA as a dedicated account launches a new phase in the Claimant's case: with the WC claim settled, they can now move to recovery and rehabilitation. It does not mean, however, that CMS is no longer involved. Over the term of the recovery period, CMS and the payors will be tracking a variety of factors to ensure that the funds are well spent and that the injured party is recovering as completely as possible.


But that's a discussion for another post ....


Everyone updates, including the Centers for Medicare and Medicaid Services (CMS). In October, the CMS released its updated Medicare Set Aside (MSA) reference guide, version 3.0, which replaces version 2.9 released just in January of this year. As participants in the MSA system make changes to reflect the new guidelines, they should be careful to note and follow the new standards.


Not All Changes are Equal

Not surprisingly, because the CMS is an immense bureaucratic organization, some of the changes are relatively small and more administrative in nature. These, while interesting, won't affect the processing of MSAs to any great extent. Other changes offer insights into interesting trends that may not have an impact in the near future but suggest more changes may be coming in the next year or so. Still other changes, however, carry critical legal ramifications, so understanding and implementing those new requirements will be necessary to remain in compliance with MSA administration standards.


Notable Changes - Need to Know

There are two notable changes to the Guide that will have an impact on every future MSA: the revised "Consent to Release" rules, and the extension of the "Amended Review" opportunity from four to six years.


"Consent to Release" Form rules

Date of compliance: April 1, 2020

What it Says

The new rule requires all MSA applications to attach an updated "Consent to Release" form that includes language indicating that the beneficiary understands the details of the MSA process. It must also reflect their comprehension that their medical and other records will be shared with CMS and its agents (in particular, the WC Review Contractor - WCRC). The critical language will indicate that the injured party understands:

  • the intent of the MSA;
  • how the MSA submission process works, and
  • how the administration of the established MSA will work.

Additionally, at the very least, the claimant's initials should appear on the consent form to establish its validity, but full signatures are the optimal choice.


Why it's Important

'Informed consent' is a significant legal principle that ensures that when people give up their rights in exchange for something, they are doing so knowing the full ramifications of the transaction. "Informed" means that the person has been given all the information needed to understand and make decisions about the circumstances at hand.

  • In the legal sphere, informed consent is needed when criminals negotiate plea deals, for example, or people undertaking a contract agree to perform certain functions in exchange for contract benefits.
  • In the healthcare sphere, informed consent means that patients are given all the information available about their condition, its treatment options, alternative options, and the benefits and risks involved in each.

The premise behind 'informed consent' is that a person can only truly commit to an action when they understand all the potential impacts it may have on their life.


In the MSA sphere, and in the MSA application process in particular, 'informed consent' means four things:

  •  that the injured person intentionally agrees to share all their relevant information with not just their medical team, but also with the insurers, the legal people and the CMS MSA administrators;
  • that the injured person understands the intent of the MSA (to cover future, injury-related medical costs) and agrees that they will comply with that agreement once it is established;
  • that they understand the process of establishing the MSA, including the requirement of sharing all the details of their case with the other parties to the WC claim, and
  • that the CMS will maintain continued vigilance over the established MSA (via regular reports, etc.) after it's approved and the underlying legal case has closed.


Failure to obtain and submit proof of informed consent often renders moot whatever decisions were made without it. Failure to provide evidence of informed consent by an injured worker in a WC case may result in the setting aside of either or both the negotiations and final 'agreements' of the parties to the 'final' MSA contract.


The CMS includes a template for an appropriate Informed Consent document in the new Guide. Those forms are required in MSA application submissions after April 1, 2020.


Extension of the "Amended Review" Period

What it says

The new Guide states that requests to review the details of a submitted MSA application can now be submitted up to 72 months after that initial MSA application was sent in. The previous rule limited such submissions to 48 months after the initial documents were transmitted.


Why it's Important

This change is significant because it reflects CMS's awareness that medical conditions, treatment options, and outcomes change and that MSAs can be rendered obsolete or insufficient as a result. While the 24 months between four years and six years may not seem like a significant length of time, in the healthcare field, it could mean the difference between a lifetime of pain or a complete recovery due to advanced interventions. For employers, it could mean the avoidance of significant medical expenditures for workers who, because of new healthcare developments, are able to achieve improved outcomes at less cost.


There are, of course, caveats to the new rule:

  • It applies when a potential MSA case hasn't settled but already has a conditional CMS approval for an MSA when it does.
  • It is only available when the new information suggests a change (increase or decrease) of 10% or $10,000 (whichever is greater) in the cost of injury-related care over the cost indicated in the initial application.

The change in care costs must be justified by noting in line items to the proposal:

    • Details regarding the costs of benefits already received by the beneficiary, including references to supporting records. References to those records must also be included in the new plan;
    • Details reflecting where initially proposed care is no longer needed. If replacement care is substituted for that which was noted in the initial proposal, the amended proposal must include references to the replacement care, and
    • Additional line items detailing the new types of care not included in the initial plan.
  • All requests for changes to treatment plans must include medical records supporting the claim.


When approved by CMS, the approved amount becomes effective on the date of settlement of the case. Also, note that substituting generic drugs for non-generic drugs is not a justification for an amended review unless it is included among the justifications listed above.

CMS has provided additional information for electronic filing for those considering how to manage a newly available Request for Re-Review opportunity.


Interesting Changes - Good to Know

CMS has also enhanced its requirements on individual elements of the MSA process:

  • CMS "highly recommends" using a professional WCMSA administrator - rather than self-administration - to manage the MSA account when the claimant is prescribed controlled substances that are (by CMS definition) "frequently abused drugs." This clarification takes note of the Opioid crisis and the relationship between WC cases an opioid addiction and abuse, and CMS recommends establishing a Drug Management Program when such drugs are prescribed.
  • When considering the terms of the MSA, CMS now requires using the updated 2016 Life Table to determine lifetime expectancies. Just in January, the agency recommended the 2015 table. Comparison of those tables indicates that, while most of the predictions remain stable (the average life expectancy for every child born today is 78.7 years), life expectancy for blacks have declined by .2 years: for males, from 72.2 years in 2015 to 72 years in 2016; and for females, from 78.5 years in 2015 to 78.3 years in 2016. The life expectancy for Hispanic males has also declined by .2 years (from 79.3 to 79.1 years), while Hispanic females experienced no such decline.

The change, however slight, would impact the overall value of an MSA in the event of

the need for lifelong care.



For all participants in the Medicare Set-Aside arena, the updated Guide offers important information for future MSA development and management. These new rules reflect the Agency's awareness and acknowledgment of today's realities:

  • People need to be fully apprised of the circumstances of their case before they can commit to the MSA terms;
  • Injury-related medical care evolves over time, and sometimes more time is required to identify the full scope of the injured worker's medical plan.
  • Drug addiction concerns continue to plague Medicare; MSAs should reflect sensitivity to that concern.
  • Technology will continue to improve the communications and management of MSAs into the future.

We can only assume that future updates will be as thoughtful and comprehensive as this one is.