If you do not properly manage your MSA account, you could severely jeopardize Medicare paying for your future medical care. Consequences include: denial of future bills from Medicare if your funds exhaust and being required to repay your MSA account for expenses that were paid for that are not covered by Medicare. Medicare reserves the right to have reporting for up to the entire settlement amount on medicare covered treatments before Medicare agrees to begin covering injury-related bills.

If the injured party doesn’t properly manage their MSA account, Medicare will deny paying for their injury-related treatment until the reporting is corrected. To do so, the injured party will have to pay back any amount that was used on an improper expense not relating to their injury back into the MSA account.

Mismanaging the MSA account will jeopardize the injured party’s future Medicare benefits; for this reason, it's important to be careful and seek assistance. Medicare "highly recommends" the use of a professional administrator.

If you have a structured settlement and use up all the money in your MSA account before your next annual deposit arrives, your next steps depend on your Medicare status.

Handling an exhausted MSA if you are a current Medicare beneficiary

If you are a Medicare beneficiary, you should send an attestation letter to the Benefits Coordination & Recovery Center (BCRC) stating that your account is temporarily depleted. You can then bill Medicare for any additional expenses related to your workers' compensation injury until your next annual deposit is received.

This creates a situation where you will have alternating primary payers: first yourself through the MSA, then Medicare while your account is depleted, and then yourself again when your account receives its next funding. This alternating payment responsibility can be confusing for healthcare providers. It's important to clearly communicate with them about when they should bill Medicare instead of expecting payment from your MSA account.

If you have MSA funds to pay part of a bill but not all of it, it’s recommended you ask healthcare providers to send the entire bill to Medicare rather than paying it yourself.

Handling an exhausted MSA if you are NOT a Medicare beneficiary

If you are not yet a Medicare beneficiary when your account is temporarily depleted, you will need to use other insurance to pay for workers' compensation injury treatments until your MSA receives its next deposit. If you have no other insurance coverage, you will unfortunately have to pay out of pocket for these treatments until more funds are deposited into your account.

If you are self-administering your MSA, you can find more information about attestation in Self-Administration ToolKit v. 1.7

We’re Here to Help

With CareGuard, you're never deal with a medical bill alone. If you have a Medicare Set-Aside, CareGuard ensures full compliance by handling all necessary reporting to The Centers of Medicare and Medicaid Services (CMS), giving you peace of mind.

CareGuard also simplifies your care-related payments. Just present your CareGuard card at your doctor’s office or pharmacy, and we’ll handle the rest.

Please note: While CareGuard streamlines the billing process, there may be situations where members are responsible for paying a bill directly. In such cases, members can submit the invoice for reimbursement, as outlined in the Member Agreement provided at enrollment.

Learn more about CareGuard

Yes, CMS requires all Medicare Set Aside funds to be stored in a separate, interest-bearing account to prevent commingling with other funds and simplify accounting.

What are the CMS requirements for managing Medicare Set Aside bank accounts?

• Use MSA funds exclusively for Medicare-covered treatments related to the injury.
• Maintain funds in a separate, interest-bearing bank account.
• Keep and organize all related bills and receipts.
• Report expenditures to CMS annually or when funds are depleted.

How are funds deposited into my Medicare Set Aside account?

• Lump sum settlements: funds will only be deposited into your account in one lump sum.
• Structured settlements or annuity payments: there may be an initial deposit, followed by periodic deposits that often occur annually.

What is the best way to comply with Medicare Set Aside bank account requirements?

Due to the complexity of administering and managing a Medicare Set Aside account, CMS strongly recommends that injured parties use a professional administrator. Using professional administration means you never have to worry about compliance with Medicare rules, process bills, maintaining records or handling CMS reporting.

Learn more about Ametros’ professional administration service, CareGuard

CareGuard is a leading professional administration service that helps manage your future medical funds following a workers' compensation or liability settlement. Our goal is to make your post-settlement life easier by saving you money on doctor's visits, prescriptions, medical equipment, and more, all while coordinating your care. With CareGuard, you’ll never deal with a medical bill alone, and our experts will manage any necessary Medicare Set Aside reporting on your behalf.

Learn more about CareGuard

Professional administrators play a crucial role in extending settlement funds by leveraging their expertise and networks. They secure potential discounts through their provider and pharmacy networks and negotiate with service providers to maximize funds.

Expertise of Professional Administrators 

Professional administrators are skilled in ensuring medical funds are efficiently managed. Their expertise includes:

• Securing appropriate billing with correct ICD-9 and 10 codes
• Adhering to applicable fee schedules 
• Negotiating fees to enhance fund longevity 

Potential Discounts and Negotiations 

One of the primary ways professional administrators extend settlement funds is through negotiating discounts. By working closely with service providers and utilizing established networks, they can significantly reduce medical expenses.

How Does Fee Negotiation Affect Settlement Funds? 

Fee negotiation is a critical strategy used by professional administrators. It involves:

• Engaging with service providers to discuss fee reductions
• Ensuring that all charges align with negotiated pricing
• Monitoring ongoing expenses to maintain fund efficiency

There is currently no policy that permits an individual with a Medicare Set-Aside (MSA) account to access or release funds during their lifetime, except for authorized expenses related to the original work injury covered by Medicare. This remains true even if an individual's condition improves.

Guidelines from CMS on Set-Aside Funds

The Centers for Medicare & Medicaid Services (CMS) does not allow the release or reduction of set-aside funds without its express approval. If a treating physician determines a beneficiary's condition has significantly improved, the beneficiary or their representative can submit a request to the appropriate CMS Regional Office (RO) for a reduction. This request must be accompanied by supporting documentation from the physician. The decision made by the RO is final and cannot be appealed.

Circumstances for Proposals to CMS

CMS outlines that if a new proposal is required due to significant health improvements, it must show at least a 25% reduction in the current WCMSA fund. Such proposals can only be submitted five years after a prior CMS approval and must include new supporting documents. If approved by CMS, any excess funds in the WCMSA may be released to the claimant.

WCMSA Account Restrictions

According to the WCMSA Reference Guide, funds in an MSA account can solely be used for medical treatments or prescriptions related to the work injury, which Medicare would otherwise cover. Unused funds at the end of a year are carried over to the next year, continuing until all funds are used appropriately.

In summary, while condition improvement may seem like grounds for reducing an MSA, CMS controls decisions about these funds, allowing access only for medical expenses related to the claim and covered by Medicare, irrespective of any health improvements the individual might experience.

For further details, please refer to the WCMSA Reference Guide.

There is no specific statute or regulation that formally mandates a Liability Medicare Set-Aside (LMSA). However, failing to consider Medicare's future interests can have significant consequences.

Involving a Medicare Set Aside (MSA) in a liability case requires careful consideration of Medicare's interests. The Centers for Medicare and Medicaid Services (CMS) have maintained that Medicare’s interests should be taken into account when resolving liability claims. 

Related reading:

• Understanding Medicare Set-Asides for Personal Injury Cases
• What Is a Medicare Set-Aside?
• Liability Settlement Services
  
  

Steps to involve a Liability Medicare Set-Aside (LMSA)

Unlike Workers' Compensation MSAs, LMSAs lack formal CMS review thresholds. No specific regulations mandate when liability cases require Medicare Set-Asides. Settlement parties must evaluate each case individually to determine LMSA necessity.

Involving a Medicare Set-Aside in liability cases requires systematic assessment and planning. The process protects Medicare's interests while facilitating settlement negotiations.

1. Assess the need for an MSA

Several factors trigger MSA consideration in liability cases. Settlement value represents the primary indicator for potential MSA involvement.

Common triggers include:

• Total settlement values exceeding $25,000
• Significant allocation for future medical expenses
• Claimant's current or future Medicare eligibility
• Ongoing medical treatment requirements
• Injury severity suggesting long-term care needs

The assessment requires case-by-case analysis. Consider the potential cost-shift to Medicare and plaintiff's Medicare status.

2. Obtain a professional MSA report

Professional MSA reports provide detailed calculations for future medical costs. These reports require comprehensive medical information and treatment projections.

Essential information includes:

• Complete medical records from injury date
• Current treatment plans and provider recommendations
• Diagnostic imaging and test results
• Medication lists and prescribing patterns
• Life expectancy considerations

The calculation methodology considers injury-specific treatment needs. Professional evaluators project future Medicare-covered expenses based on established medical protocols.

3. Integrate MSA reports into settlement negotiations

MSA reports influence settlement values and negotiation strategies. The projected amount affects both parties' settlement positions.

Settlement agreements should address Medicare's future interests explicitly. Release language must account for MSA obligations and fund allocation requirements.

The MSA amount typically becomes part of the overall settlement structure. Parties negotiate how MSA costs impact the total settlement value.

Historical Context and Guidance

• Important Memos and Calls: Since the 2001 “Patel Memo,” there have been varying interpretations regarding MSAs in liability cases. Key documents, like the May 25, 2011 “Stalcup” memo, emphasize considering Medicare’s interests.
• Rulemaking and Reviews: CMS initiated a rulemaking process in 2012, though it paused in 2014. Subsequent updates have been anchored around the Workers' Compensation Review Contractor’s (WCRC) ability to review Liability Medicare Set Asides (LMSAs).
• Future Regulations: CMS issued a notice in 2018 for anticipated rulemaking on future medicals. Speculation suggests this could address LMSAs, but proposed rule issuance has been extended several times, most recently to August 2020. 

Considerations in Liability Cases

In the absence of firm regulations, liability cases need a tailored approach: 

• Case-by-Case Analysis: Analyze the potential cost-shift to Medicare and the plaintiff's Medicare status.
• Risk-Management Philosophy: The payer’s risk management strategies and the parties' philosophies play a crucial role in decision-making. 

Funding mechanisms for MSA Set Asides

Two primary funding approaches exist for MSA implementation. Each method offers distinct advantages and administrative requirements.

Lump sum funding:

• Immediate full funding at settlement
• Eliminates ongoing payment obligations
• Requires careful fund management planning

Professional administration:

• Structured payment arrangements
• Ongoing oversight and management
• Reduced initial settlement costs

Professional administration provides expert oversight and compliance monitoring. Self-administration places responsibility on the injured party.

Related reading:

• Professional Administration and Your Health- Ametros

Documentation requirements

Thorough documentation supports MSA decisions and compliance efforts. Records demonstrate consideration of Medicare's interests regardless of final approach.

Key documentation includes:

• MSA assessment reports and calculations
• Medical evaluations supporting treatment projections
• Settlement negotiation records addressing Medicare interests
• Attorney opinions on MSA necessity
• CMS submission materials when applicable

Documentation protects all parties from future Medicare recovery actions. Proper records demonstrate good faith compliance efforts.

Post-settlement administration options

MSA funds require ongoing management after settlement completion. Two primary administration approaches serve different client needs.

Self-administration benefits:

• Direct control over fund management
• Potentially lower administrative costs
• Flexibility in provider selection and treatment timing

Professional administration benefits:

• Expert compliance oversight
• Detailed record-keeping and reporting
• Protection from administrative errors
• Medicare communication handling

Professional administrators manage fund disbursements and Medicare reporting requirements. They provide expertise in complex compliance situations.

Settlement thresholds for consideration

Settlement value guidelines help determine when MSA consideration becomes necessary. These thresholds derive from Workers' Compensation practices and industry standards.

Related reading:

• When is a Medicare Set-Aside necessary?
• FAQs: Medicare Set-Asides

Common threshold guidelines

Industry practice references specific dollar amounts for MSA consideration. These amounts trigger initial assessment of Medicare Set-Aside necessity.

Typical thresholds include:

• $25,000 total settlement value
• $5,000 allocated for future medical expenses
• Combination of settlement size and medical allocation

These thresholds represent industry guidelines, not formal regulatory requirements. Each case requires individual assessment beyond threshold considerations.

Medicare eligibility considerations

Current and future Medicare eligibility significantly impacts MSA necessity. Settlement timing relative to Medicare enrollment affects compliance requirements.

Key eligibility factors:

• Current Medicare beneficiary status
• Age proximity to Medicare eligibility
• Disability-based Medicare qualification
• End-stage renal disease considerations

Medicare eligibility within 30 months of settlement typically triggers MSA consideration. Earlier eligibility dates increase compliance obligations.

H3 - Regulatory context

These thresholds lack formal CMS endorsement for liability cases. They represent industry best practices adapted from Workers' Compensation guidance.

CMS has not established specific LMSA submission requirements. The thresholds provide practical guidance for risk management decisions.

The importance of compliance with MSA requirements

Addressing Medicare interests protects all parties from future complications. Proper MSA consideration prevents costly recovery actions and legal challenges.

Protection strategies include:

• Thorough MSA assessment and documentation
• Professional evaluation of Medicare interests
• Appropriate settlement structure addressing future medical needs
• Compliance monitoring throughout settlement process

Risk management approaches vary based on case facts and party philosophies. Professional guidance helps navigate complex compliance requirements.

Professional administration for LMSAs

Professional administration offers expert oversight for LMSA fund management. Third-party administrators handle compliance requirements and Medicare reporting obligations. This service protects injured parties from administrative errors and regulatory complications.

Key service advantages:

• Expert compliance monitoring and reporting
• Detailed record-keeping for all transactions
• Medicare communication and correspondence handling
• Protection from administrative mistakes and oversights

Professional administration ensures proper fund utilization according to Medicare guidelines. Administrators verify that expenses qualify for MSA reimbursement before payment.

Administrative services and oversight

LMSA administrators handle day-to-day fund management responsibilities. They process reimbursement requests and maintain comprehensive documentation. Professional oversight protects against improper fund usage and compliance violations.

Core administrative functions:

• Review and approve medical expense reimbursements
• Maintain detailed transaction records and reporting
• Coordinate with Medicare regarding fund status
• Provide annual account statements and compliance reports

Administrators ensure MSA funds are used only for injury-related medical expenses. They verify provider credentials and treatment necessity before approving payments.

Risks of non-compliance with Medicare requirements

Failing to address Medicare's future interests creates significant legal and financial risks. All settlement parties face potential consequences for inadequate MSA consideration.

Related reading:

• What if my Medicare Set-Aside was never reviewed and approved by Medicare?
• Medicare is a Secondary Payer: Lessons Learned with Medicare Set-Aside Accounts in Workers' Compensation and How They Might Apply to Liability Settlements

Medicare recovery actions

Medicare can pursue recovery from multiple settlement parties. Recovery actions target funds that should have addressed future medical expenses.

Potential targets include:

• Injured plaintiffs who received settlement funds
• Insurance companies making settlement payments
• Attorneys facilitating settlement agreements
• Other parties involved in settlement process

Recovery actions can occur years after settlement completion. Medicare's subrogation rights continue despite settlement finalization.

Double damages provision

The Medicare Secondary Payer Act includes double damages penalties. This provision significantly increases financial exposure for non-compliance.

Double damages apply to amounts Medicare pays for injury-related care. The penalty doubles the original Medicare expenditure amount.

Impact on Medicare benefits

Improper MSA handling can affect future Medicare coverage. Beneficiaries may face coverage denials for injury-related treatment.

Medicare may refuse payment for services it believes settlement funds should cover. This creates personal financial liability for the injured party.

Looking Ahead

As the industry awaits final CMS rulemaking, stakeholders should remain vigilant about updates in the legislation affecting LMSAs. 

For more detailed guidance on Medicare Set Asides, review the WCMSA Reference Guide. 

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Funding Medicare Set-Aside Accounts 

A Medicare Set-Aside (MSA) can be funded through one of two methods:

• Lump-Sum Payment: A one-time payment to fund the entire MSA.
• Structured Settlement: Initial deposit (often called "seed" money) followed by regular annual payments.

Since each method has different benefits, reference the Self-Admin Toolkit, v1.3, sec. 3 for detailed guidance on managing these options.

Benefits of Annuity-Funded MSA

Choosing a structured settlement to fund an MSA provides distinct advantages. For Medicare beneficiaries, if funds are depleted temporarily in any year, Medicare reimburses MSA-covered healthcare treatments. This information is covered further in the Self-Admin Toolkit, v1.3, sec. 11.

Managing and Storing MSA Funds

It is critical to keep MSA funds in an interest-bearing account that is separate from other personal accounts. It's recommended by CMS to store funds in an FDIC-insured account without low-balance fees, providing easy check access. For more details, see Self-Admin Toolkit, v1.3, sec. 2 and the WCMSA Reference Guide, v.3.1, sec 17.2.

Appropriate Use of MSA Funds

To avoid potential issues with Medicare denying treatment, it is essential to use MSA funds solely for Medicare-covered treatments related to the initial injury. For further information, refer to the Self-Admin Toolkit, v1.3, sec. 4.

Administering Your Medicare Set-Aside

MSAs can be self-administered (if permitted by state law) or managed by a professional administrator. CMS advises that injured parties consider using a professional administrator for added protection. More about this is discussed in the WCMSA Reference Guide, v.3.1, sec 10.6.

Protecting MSA Funds with Professional Administration

Professional administration, such as services offered by Ametros, can shield MSA accounts from direct garnishments often requested by states. This additional layer of protection is advantageous compared to self-administration, ensuring compliance and security. A professional administrator can significantly decrease garnishment risks.

For detailed procedures and further reading, please consult the WCMSA Reference Guide and the Self-Admin Toolkit sections as mentioned.

For any related questions or further advice on managing your MSA funds, consider reaching out to a professional administrator or consulting the provided resources.

The necessity of a Medicare Set-Aside (MSA) arises when ensuring that Medicare's interests are protected in workers’ compensation settlements resolving medicals. While there are no strict legal mandates to prepare or submit an MSA to the Centers for Medicare & Medicaid Services (CMS), it is the sanctioned method to safeguard Medicare's interests.

What is a Medicare Set Aside?

An MSA allocates funds from a workers' compensation settlement specifically for future medical expenses that Medicare covers, related to the work injury. This ensures compliance with the Medicare Secondary Payer (MSP) laws, which are in place to prevent unnecessary cost-shifts to Medicare.

When Does CMS Review an MSA?

CMS will conduct a voluntary review of proposed Workers' Compensation Medicare Set Asides (WCMSAs) to ensure that the allocated amount sufficiently covers future Medicare-covered medical expenses from the settlement.

Conditions for CMS Review:

• Current Medicare Beneficiary: If the claimant is a Medicare beneficiary and the total settlement amount exceeds $25,000.
• Future Medicare Enrollment: If the claimant is expected to enroll in Medicare within 30 months and the settlement total, covering future medical expenses and disability, is anticipated to exceed $250,000.

The Importance of CMS Approval

Opting for CMS review and approval of a proposed WCMSA offers a level of assurance and finality to Medicare beneficiaries and workers’ compensation entities. Without this approval, Medicare may deny related medical claims or seek recovery of payments up to the total settlement amount if related medical expenses are covered by the settlement but paid by Medicare.

For a more comprehensive understanding and specific guidance on when and how an MSA should be prepared, refer to the Workers’ Compensation Medicare Set-Aside Reference Guide, v3.1.

In a Workers’ Compensation Medicare Set-Aside (WCMSA), allocations are determined individually, considering only items and services related to the workers’ compensation injury that Medicare would cover.

Key Factors in MSA Calculation 

Post-settlement treatment, prescription drugs, and items are calculated based on multiple sources and factors, including:

• Applicable workers’ compensation fee schedules
• Usual and customary charges
• Actual charges, through reviewing claims payment and prescription drug payment histories
• Treatment records from the last two years
• Medical bills
• Facility or provider fees

Influence of Age and Injury Type on MSA Calculations

CMS notes that medical pricing may fluctuate depending on factors like injury, age, and location. Each submission undergoes an individual review, which means different claimants with similar injuries and ages could receive differing WCMSA amounts. 

Prescription Drug Pricing in MSA 

For prescription drugs, the Workers’ Compensation Review Contractor (WCRC) prices Part D drugs based on the Average Wholesale Price (AWP). This pricing considers both brand and generic formulations and uses data from the Truven Health Analytics’ Red Book, which is updated monthly. 

Further Resources 

For more detailed information on how WCMSAs are priced and allocated, consult the WCMSA Reference Guide. 

The timeframe for preparing a Medicare Set-Aside (MSA) can vary based on several factors, such as the severity of injuries, case complexity, and the volume of treatment records involved. Typically, MSA vendors take between 3-5 business days under normal circumstances, although some may offer expedited "rush" services for faster turnaround.

Factors Influencing MSA Preparation Time

• Injury Severity and Case Complexity: More complex cases with severe injuries may take longer due to the need for detailed evaluation.
• Availability of Records: The speed at which treatment records can be obtained and reviewed directly impacts the MSA preparation time.
• Vendor Efficiency: Different MSA vendors have varying standard processing times. 

Standard Review Time by CMS

For the Workers’ Compensation Review Contractor (WCRC) to review an MSA, it typically takes an average of 30 days if there are no issues in case development. However, the Centers for Medicare & Medicaid Services (CMS) specifies that the review process can extend to 45 to 60 days once all relevant documents are submitted.

Additional Details

For comprehensive information on official CMS timeframes, refer to the WCMSA Reference Guide, v.3.1, sec 15.1. 

Unused Medicare Set-Aside (MSA) funds remain in the MSA account and are carried over to subsequent years. These funds are reserved to cover medical treatment related to the claimant's workers’ compensation claim which Medicare would otherwise cover.

Carrying Forward Unused MSA Funds

According to the Centers for Medicare & Medicaid Services Self Administration Toolkit, if any funds are left over at the end of a year, they do not vanish. These remaining funds carry over to the next year, allowing usage of both the new annual deposit and the previous year's leftover amount. This continuous rollover ensures that all accumulated funds are used appropriately.

Post-Claimant Death Fund Management

In the event of the claimant's passing, if unused MSA funds remain, CMS may require reimbursement for any outstanding covered medical expenses. Medical providers have up to 12 months from the date of service to bill. Once all obligations to Medicare are cleared, the remaining MSA funds can be disbursed according to state law and the specific settlement agreement, potentially holding the account open for a period post-death.

For more detailed guidance, please refer to the Workers’ Compensation Medicare Set-Aside Reference Guide, v3.1 and the Self Administration Toolkit, v1.3. These resources cover comprehensive information on managing MSA accounts and handling funds responsibly.

Avoiding a Medicare Set-Aside (MSA) is generally not recommended if your settlement includes future medical expenses that Medicare might cover, as this could lead to a cost-shift to Medicare. It's important to ensure compliance with the Medicare Secondary Payer (MSP) laws to protect Medicare’s interests.

Responsibilities Under MSP Laws

Under MSP laws, all parties involved in a workers' compensation case must protect Medicare’s interests when resolving cases with future medical costs. These laws aim to prevent Medicare from covering expenses that should be the responsibility of another party.

Risks of Avoiding Medicare Set-Aside

Disregard of Settlement: Attempting to shift the financial responsibility for medical expenses to Medicare can lead to your settlement being disregarded. According to 42 CFR 411.46(b)(2), settlements intended to circumvent Medicare’s interests may be invalidated.

CMS Non-Compliance Consequences: If a Workers’ Compensation settlement is reached without CMS approval for an MSA, CMS is not bound by the MSA amount specified. This means CMS may refuse to pay for future medical expenses related to the injury.

Potential Refusal to Pay: CMS has the authority to refuse payment for certain expenses related to the injury until the settlement is entirely exhausted, as noted in the WCMSA Reference Guide, v3.1, Sec. 3.

Right of Recovery

Medicare holds a priority right of recovery against any entity receiving part of the settlement payment, ensuring its interests are protected financially. Detailed guidance can be found in the WCMSA Reference Guide, v3.1, Sec. 3.

For further information about Medicare Set-Asides and compliance, visit Medicare’s official MSA webpage.