In This Alert: New CMS Rule Effective April 1, 2020
When a case is settled by Compromise and Release for $25,000 or more with an applicant that is on Medicare, or is expected to be on Medicare within 30 months, the best practice is to obtain a Medicare Set-Aside agreement to prove that it is not the intent of the parties to shift liability to Medicare for future medical treatment.
However, after settlement when Medicare questions applicants about the accounting of their MSA funds it may be informed by the applicants that they were not notified about the requirements of the use of funds for treatment of the industrial injury. This could potentially create an opportunity for the applicant to have the Order Approving the Compromise and Release set-aside by the WCAB. To prevent such situations, CMS has updated The Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3 dated October 10, 2019 regarding the Consent to Release that must be filed with the submission packet to CMS as follows:
“As of April 1, 2020, all Consent to Release notes must include language indicating that the beneficiary [the applicant] reviewed the submission package and understands the WCMSA intent, submission process, and associated administration. This section of the consent form must include at least the beneficiary’s initials to indicate their validation”.
This update requires the applicant to review the documentation that the MSA vendor will submit to CMS. Following their review of the information to be sent to CMS the applicant must acknowledge that he or she has been informed about all components of the MSA, the need for the MSA, the content of the MSA, the process for MSA approval, the day-to-day requirements of self-administering the MSA account/funds and approval of the information being sent to Medicare. Without the proper Consent to Release signed by the applicant, CMS will not review the WCMSA package which will prevent the MSA from being approved by CMS.
The WCMSA reference guide can be found by following the link below.
What This Means for You
GMK recommends that the MSA vendor that prepares the information to be submitted to CMS also provide a copy of that documentation to the applicant’s attorney and the applicant. That documentation should also include the Consent to Release that has the proper language and requires the applicant’s attorney to obtain a signed release and return it to the MSA vendor prior to submission to CMS. Additionally, GMK recommends attaching an addendum to the Compromise and Release that is signed by the applicant, and preferably witnessed, acknowledging that he or she has been informed about the MSA, the need for the MSA, the content of the MSA and the day to day requirements of administering the MSA account/funds.
Mark Riggenbach
Goldman, Magdalin, & Krikes, LLP