Presented by the Medicare Set-Aside Practice Group

What’s Hot in Workers’ Comp – Special MCare Set-Aside Alert

New Year Brings New Developments in Medicare

Two recent developments are impacting the procedures for handling Medicare-Set Aside matters and Advantage and Part D Liens.

1.    CMS Issues Policy Concerning Non-Submit or Evidence-Based MSAs 

According to the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) reference guide version 3.5 released on January 10, 2022, CMS has issued policy guidance concerning evidence-based or non-submit MSA products that have been utilized by some vendors. Section 4.3 of the reference guide states:

“A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed ‘evidence-based’ or ‘non-submit.’ 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement. As a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.”

What this means is that these non-submit or evidence-based products will not be recognized by CMS as valid, and the Agency will deny payment for medical services related to workers’ compensation injuries until the full, net amount of the settlement money is exhausted. This includes both wage loss and medical benefits, which a claimant would now have to show as exhausted in order to have CMS/Medicare resume payment of medical expenses related to that accident or injury.

We have always, and continue to, recommend following CMS policy by submission of reviewable cases as appropriate. This new policy will certainly guide knowledgeable claimants’ counsel in workers’ compensation matters to avoid agreeing to such evidence-based or non-submit cases into the future. In addition, employers and insurance carriers now potentially face petitions to overturn settlements which utilized such products.

To view the complete WCMSA reference guide, click here

2.    PAID ACT Is Now in Effect 

The Provide Accurate Information Directly Act (PAID Act) took effect on December 11, 2021. Under this Act, responsible reporting entities (RREs) can now obtain information on a claimant’s Medicare Part C (Advantage) and Medicare Part D (prescription drug) status utilizing the RRE Section 111 query process. As such, an employer’s and insurance carrier’s reporting agent can now obtain and provide information concerning a claimant’s Medicare Advantage and Part D enrollment for the past three years. The Act is significant in that it provides the workers’ compensation community, including employers and insurance carriers involved in a claim, with a method to avoid potential double damage suits from Medicare Advantage plans and Part D drug plans.

While the actual lien data will not be included in the accessible data by the RRE, obtaining the name, address and plan number should provide sufficient data for allowance of direct contact with the Advantage and Part D plans such that we can continue to be proactive by contacting those plans for any potential liens. This allows us to avoid the potential for double damages and challenging unrelated payments. 

What's Hot in Workers' Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact