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CMS Memo Reiterates WCMSA Review Thresholds

The Centers for Medicare and Medicaid Services (CMS) just released a new memo, dated May 11, 2011, which reiterates their previous guidance regarding their review thresholds for Workers’ Compensation Medicare Set-Aside (WCMSA) agreements.

This Memo does not seem to provide any new information on the topic. However, it is helpful because it consolidates previous guidance from multiple previous WCMSA memos in one place. Interestingly, this memo is the first WCMSA memo written by Charlotte Benson, the new Acting Director of CMS’s Office of Financial Management, the Financial Services Group; a position formerly held by Gerald Walters, who apparently has been promoted to Acting Deputy Director of the Office of Financial Management.

The Memo emphasizes the following:

  1. Submission of a WCMSA to CMS for review is a recommended process.
  2. There are no statutory or regulatory requirements to submit WCMSAs to CMS for review.
  3. However, if an entity chooses to use the review process, CMS requests that they follow the rules on its Web Site.
  4. CMS reviews certain MSAs to protect its interest under the Medicare Secondary Payer Statute.
  5. A WCMSA should not be submitted to CMS if future medicals are being left open.
  6. A WCMSA meets the CMS review criteria if:
    a. “The claimant is currently a Medicare beneficiary and the total settlement amount is greater than $25,000; OR”
    b. “The claimant has a “reasonable expectation” of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.”
  7. CMS will not review a WCMSA if the above thresholds are not met.
  8. These thresholds reflect “an operational workload” requirement, not a safe harbor.
  9. Medicare beneficiaries must still consider Medicare’s interests in all WC cases and insure that Medicare is the secondary payer to WC.
  10. Per Charlotte Benson, all questions and concerns are to be directed to Frank Johnson, of her staff. Poor guy!

To view the actual memo click here.

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