While there are no statutory or regulatory provisions requiring a Worker’s Compensation Medicare Set-Aside (WCMSA) proposal be submitted to CMS for review, in all cases, submission of a WCMSA proposal is a recommended process and in some cases a required process.
If you choose to submit a WCMSA for review, CMS requests that you comply with its established policies and procedures. CMS will only review new WCMSA proposals that meet the following criteria:
The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
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 $250,000.00.
* Factors to determine eligibility within thirty (30) months:
Claimant is 62½ years old;
Claimant is receiving Social Security Disability benefits (SSDI);
Claimant has applied for SSDI and is awaiting decision;
Claimant was denied SSDI benefits and anticipates or has already appealed the denial;
Claimant has end stage renal disease; or
Claimant has a deceased spouse
Regardless of whether you meet the criteria, you must always take Medicare’s interest into consideration. Therefore all settlements should include some MSA protective language and distinction in the settlement breakdown between Medicare and non-Medicare future medical expenses.
The aforementioned is in a constant state of transition and unfortunately no one can predict how broad the requirements may become, if and when amended. Therefore, it is vital to speak with your worker’s compensation attorney to understand whether or not this applies to you and if so, how it affects your settlement.