Need Help with a Workers’ Compensation Future Medical Allocation that Complies with Medicare’s Guidelines?


Medicare is a federal health insurance program available to people who are 65 or older, younger people who have qualified for Social Security Disability Insurance (SSDI) benefits, and people with end-stage renal disease, which is permanent kidney failure so severe that it requires dialysis or a kidney transplant.


Though you may have Medicare coverage, Medicare may not have primary payment responsibility for medical treatment that you receive if your care is the responsibility of other health care coverage, such as workers’ compensation, no-fault insurance, liability insurance, self-insurance, or group health plan insurance in some cases.


Your employer’s workers’ compensation insurance company is the primary payer for medical treatment related to your work-related injuries or occupational disease if you’re a Medicare beneficiary. Medicare requires its beneficiaries to apply for all applicable workers’ compensation benefits. And physicians, medical providers, surgeons, and medical suppliers must bill the workers’ compensation insurance carrier before they bill Medicare.


Under Section 1862(b)(2) of the Social Security Act Medicare may not pay for your medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” If the workers’ compensation claim is disputed and the workers’ compensation insurance carrier refuses to pay promptly, then the physician, surgeon, health care provider, or medical supplier may bill Medicare as the primary payer.


You are considered to have received payment if you obtain a workers’ compensation settlement, judgment, or award order.


Fortunately you can get certainty over the amount you must spend on medical treatment related to your work injuries before Medicare begins to pay for care related to your injuries. This is done through a Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA).


MSA lawyer Corey Pollard is here to help you understand the process used by the Centers for Medicare & Medicaid Services (CMS) when determining whether to approve a proposed Workers’ Compensation Medicare Set-Aside Arrangement. If you have any questions, contact us for more information.


What is a Workers’ Compensation Medicare Set-Aside Arrangement?


Any injured employee who receives a workers’ comp settlement or award that includes future medical expenses must take Medicare’s interests into account when settling a case. If you do not consider Medicare’s interests then CMS has a right of recovery against any person or entity that received any portion of a third-party payment either directly or indirectly. CMS also has a subrogation right with respect to any third-party payment.


Medicare has the right to refuse to pay for future medical expenses related to your workers’ compensation claim until the entire amount of your settlement is exhausted if you refuse to take Medicare’s interests into account when settling the claim.


A Medicare Set-Aside Arrangement allocates a portion of your total workers’ compensation settlement for all future medical expenses related to your workers’ comp claim that are covered and reimbursable by Medicare. These are called Medicare covered expenses. A proposed Medicare Set-Aside amount is submitted to CMS. CMS will review the proposed amount and then issue a decision. If you obtain approval from CMS then you must spend the CMS-approved MSA amount before Medicare will start to pay for medical treatment related to your workers’ comp claim.


Once the CMS-approved MSA amount is exhausted and accounted for to CMS, Medicare will take over primary responsibility for future Medicare-covered expenses related to your work injuries that exceed the approved set-aside amount.


Who Can Submit a WCMSA?


Any party involved in a workers’ compensation claim may submit a WCMSA amount to CMS for approval. This includes the injured worker, the injured worker’s attorney, the attorney for the employer and insurer, MSA agents or consultants, or other representatives appointed by the injured worker.


Will CMS Review My Proposed Medicare Set-Aside Arrangement (WCMSA)? Understanding the Review Thresholds


There is no requirement or statute requiring you to submit a WCMSA amount proposal to CMS for its review. But we recommend doing so if you meet the review thresholds.


CMS will review a proposed MSA amount if you meet the following review thresholds:


  • You are a Medicare beneficiary and the total settlement amount is more than $25,000.00; or


  • You have a reasonable expectation of enrolling in Medicare within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability or lost wages over the life or duration of the settlement is expected to be more than $250,000.00.


You have a reasonable expectation of Medicare enrollment within 30 months if any of the following apply:


  • You have applied for Social Security Disability benefits


  • The Social Security Administration (SSA) has denied your claim for disability benefits but you expect to appeal that decision


  • You have appealed a denial of Social Security Disability benefits at the initial application, reconsideration, or hearing level


  • You are at least 62 years and 6 months old


  • You have End Stage Renal Disease (ESRD) but do not yet qualify for Medicare.


We recommend that you submit a proposed MSA amount if you’re settling your workers’ comp claim and meet the review thresholds set by CMS based on its workload.


Call, text, or e-mail Virginia workers compensation attorney and Medicare Set-Aside Arrangement (MSA) lawyer Corey Pollard for a free consultation.