On September 13th 2023, the Centers for Medicare & Medicaid Services (CMS) announced an upcoming increase to the maximum settlement amount for the Fixed Percentage Demand Calculation Option.

When settling a liability or workers’ compensation case, a beneficiary, or their attorney (or other representative) may request that Medicare’s demand amount be calculated using the Fixed Percentage Option. Currently the total settlement amount for the Fixed Percentage Option cannot exceed $5,000. Effective October 2, 2023, the maximum settlement amount will be raised to $10,000.

What is the Fixed Percentage Option?

The Fixed Percentage Option offers a simple, straightforward process to obtain the amount due to Medicare. It eliminates time and resources typically associated with the Medicare Secondary Payer (MSP) recovery process since you will not have to wait for Medicare to determine the conditional payment amount prior to settlement. The Fixed Percentage Option may be elected, if the following eligibility criteria are met:

      • The liability insurance (including self-insurance) settlement, judgment, award or other payment is related to an alleged physical trauma- based incident and;
      • The total settlement is for $5,000 (Note this amount will be raised to $10,000, effective October 2, 2023) or less.
      • You elect the option within the required timeframe and Medicare has not issued a demand letter or other request for reimbursement related to the incident.
      • You have not received and do not expect to receive any other settlements, judgments, awards, or other payments related to the incident.

For More Information

For additional information on the Fixed Percentage Option, please see the Fixed Percentage Option Presentation and the Fixed Percentage Model Language at CMS.Gov and consult the Downloads Section. To learn more about protecting the medical portion of your clients’ workers’ compensation and liability settlements, contact Medivest about Medicare Set-Aside Professional Administration.


On Tuesday, June 6th, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP Unsolicited Response File option. The full notice can be read below:



Section 111 Non-Group Health Plan (NGHP) Unsolicited Response File Webinar Tuesday June 6, 2023

Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation

CMS will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP Unsolicited Response File option. The format will be opening remarks by CMS, a presentation that will include background as well as how to opt in and what to expect, followed by a question and answer session. For questions regarding this topic, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110-

Date:                                 June 6, 2023
Time:                                 1:00 PM ET

Webinar Link:

Passcode:                          558113

Or to connect via phone

Conference Dial In:           1-833-568-8864
Conference Passcode:     160 117 0809

Due to the number of expected participants please log in at least 10 minutes prior to the start of the presentation.


Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.



On March 24, 2023, Governor Ron DeSantis signed House Bill 837 into law ushering in the most significant tort reform the state of Florida has seen in decades. The new legislation took effect immediately upon signing and will have a huge impact on the judicial system, particularly for personal injury cases against those at fault regardless of whether insured and in lawsuits directly against insurance companies when there are allegations of Bad Faith.

According to Governor Ron DeSantis, “Florida has been considered a judicial hellhole for far too long and we are desperately in need of legal reform that brings us more in line with the rest of the country. I am proud to sign this legislation to protect Floridians, safeguard our economy and attract more investment in our state.

A Brief Summary

To read the new law in full detail click here. Some of the major highlights of the HB 837 that will have the most impact are as follows:

Modified Comparative Negligence Framework

Florida has in the past been a pure Comparative Negligence state so even if an injured party were more than 50% at fault for their injuries, they could make a claim for damages for the percentage of fault caused by a third party.  Plaintiffs will now be barred from recovery if they are more than 50% at fault for their injuries. This change does not apply to actions based on medical negligence.

Two Year Negligence Statute of Limitations

The Statute of Limitations in negligence actions will cut the current statute in half. Claimants will now have two years from the time the cause of action accrues to file suit.

 Limiting Bad Faith Lawsuits Against Insurers

The new law states mere negligence alone is insufficient to constitute bad faith in both statutory and common-law actions against an insurer. It also mandates the claimant and the claimant’s attorney to act in good faith when furnishing information regarding the claim, issuing demands, setting deadlines, and attempting to settle.

Attorney-Client Privilege for Treating Physicians

The referral and financial relationships between the plaintiff’s personal injury firms and the treating physicians will no longer be protected under attorney-client privilege.

Standards of Admissibility of Medical Evidence

HB 837 changes what constitutes admissible evidence in establishing past, present and future medical expenses. Going forward, the admissibility of evidence at trial of past medical treatment is limited to the amount actually paid to medical providers regardless of the source of payment (health insurance provider, workers’ compensation insurance carrier, etc.). Additionally, evidence offered to prove the amount necessary to satisfy unpaid charges will be limited to how much the claimant is obligated to pay if the claimant has health care coverage other than Medicare or Medicaid.

Regarding Attorney Fees

HB 837 eliminates multipliers for attorney fees with a presumption that the newly enacted Lodestar method is sufficient and reasonable. Additionally, many of the statutes that provide for one-way attorney’s fees in actions involving insurers have been repealed.

Presumption Against Liability of Property Owners

A new section of the Florida Statutes has been created with a presumption against liability for owners and operators of multifamily residential property in cases based on criminal acts upon the premises by third parties.

Questions About Your Liability Case?

Medivest offers a full suite of settlement solutions that address MSP exposure and protect Medicare’s interests in a liability settlement. For a free case consultation, click here and one of our settlement consultants will assist you.



Whether they are working for an employer or are an independent driver/owner-operator, truckers face a number of on-the-job risks that make the profession at higher risk than most others.

Obviously, driving on the road itself is a hazard. The National Highway Traffic Safety Administration (NHTSA) publishes annual statistics on motor vehicle crashes in the United States, including those involving trucks. The most recent data available is for the year 2020, during which there were 4,761 fatalities and 112,000 injuries in crashes involving large trucks. But for truckers, accidents are not just limited to the road. They can occur in parking lots, warehouses, and at other any other stops where they may load or unload their freight.

According to data from the Bureau of Labor Statistics, the trucking industry has a relatively high rate of workers’ compensation claims compared to other industries. The rate of workers’ compensation claims in the trucking industry was 2.6 claims per 100 full-time equivalent workers in 2019, compared to a rate of 0.8 claims per 100 full-time equivalent workers across all industries. However, this does not fully portray the true number of accidents and risk, as many truckers will not qualify for workers’ compensation due to their status as an owner-operator.

Determining the Liable Party

Truck accident cases are complex because of the numerous parties involved in the industry. Determining who is liable can be a difficult process for the settling parties. Depending on the cause of the accident, the fault could either be the truck driver, another driver on the road, a maintenance provider, a manufacturer or even multiple entities may share fault. All of these factors are weighed when liability is being assessed.  

Employment Status May Make Difference

For a driver who is employed by a trucking company, the accident and claims process is typical and is usually handled directly by their employer. However, independent truckers/owner-operators may have a more complicated situation on their hands. More factors are potentially at play and need to be considered in the event they are an accident victim.

If an owner-operators is injured while working, they may be eligible for workers’ compensation benefits if they are considered an employee under the relevant state law. The specific requirements for qualifying for workers’ compensation benefits vary by state and may depend on factors such as the nature of the work being performed, and the degree of control exercised by the trucking company over the owner-operators ‘s work.

If the owner-operators is not eligible for workers’ compensation benefits, they may be able to pursue a personal injury claim against the trucking company or other parties who may be responsible for the accident. This could include claims for medical expenses, lost wages, pain and suffering, and other damages related to the injury.

The owner-operator should consult with an attorney who specializes in personal injury law to understand their legal options and to ensure that their rights are protected. An attorney can also help them navigate the claims process and negotiate with insurance companies on their behalf.

The Right Tools for a Transportation Related Settlement

Additionally, a representing attorney needs to consider if all needs have been met for an optimized settlement. Are any of the following services needed in order to get the maximum settlement and ensure that the medical portion of the settlement is protected?

For questions about any of these services or best practices for preparing for a transportation related settlement, please call us at 877.725.2467 or contact Medivest here.



On March 8th, 2023, Centers for Medicare & Medicaid Services (CMS), via Deputy Administrator and Director Daniel Tsai, offered its first official notification regarding the Gallardo v. Marstiller U.S. Supreme Court ruling to all state Medicaid agencies. The notification reiterates the requirement of state Medicaid agencies to recover their injury-related payments (liens) from settlement funds. It informs them that now those lien payment recoveries can be recovered from any portion of settlement funds designated as compensation for medicals. This includes funds considered to be compensation for future medicals of a Medicaid member.


A Brief Review of Gallardo v. Marstiller

In 2022, the Supreme Court of the United States (SCOTUS) took on the case of Gallardo v. Marstiller. At question was whether Florida’s Medicaid program was only entitled to be reimbursed for the money it spent for a Medicaid beneficiary’s past medicals from both the portion of the settlement that represents future medical expenses and past medical expenses or only from the portion of the settlement allocated as past medicals.  The SCOTUS affirmed 7-2 that the Medicaid Act permits a State to seek reimbursement from settlement payments allocated for future medical care in addition to payments allocated to past medicals.

Medivest followed the case and decision closely in 2022, and documented the details and some new questions that the decision opened up. One of those questions was, would state Medicaid agencies and their recovery agents become more aggressive in pursuing their reimbursement/lien recoveries from any and all medical damages paid in settlements?  The letter from the Deputy Administrator and Director, RE: Third-Party Liability in Medicaid: State Compliance with Changes Required in Law and Court Rulings, seems to indicate that the answer is yes.


CMS Letter – SMD # 23-002

In the letter from the Deputy Administrator and Director, the Gallardo ruling is referenced as reason for pursuing past medical payments (i.e. liens) from the future medical portions of a settlement or past medical portions of a settlement.  Additionally, the Consolidated Appropriations Act, 2022 (CAA, 2022; P.L. 117-103) is referenced. This requires states to have laws in effect that bar liable third-party payers from refusing payment for an item or service solely on the basis that such item or service did not receive prior authorization under the third-party payer’s rules.

It is worth mentioning, the letter does not expand the law. It is CMS’s attempt to help remind the various state Medicaid agencies of their ongoing obligation to recover their liens and that now, post Gallardo, they may reach into any medicals to recover those liens. The full letter can be read here.


Questions Regarding Lien Resolution?

Medivest will continue to assist injured parties by auditing Medicaid lien payment ledgers to confirm only injury-related payments are reimbursed, and in negotiating the resolution of any Medicaid liens from traditional Medicaid lien holders and privately administered Medicaid Managed Care Organization (MCO) health plans. We are always working to find ways to reasonably reduce the overall reimbursement for the injured parties.

For additional questions regarding lien resolution, please contact us here.


On Tuesday, December 6, 2022, Centers for Medicare & Medicaid Services (CMS) will be hosting a webinar entitled, “Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation”. The full notice can be read below:



CMS will be hosting a Section 111 NGHP webinar. The format will be opening remarks by CMS, a presentation that will include NGHP reporting best practices and reminders followed by a question and answer session. For questions regarding Section 111 reporting, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110-

Date:          December 6, 2022
Time:          2:00 PM ET

Webinar Link:

Passcode:  001534

Or to connect via phone:

Conference Dial In:          1-833-568-8864
Conference Passcode:    160 481 6351

Due to the number of expected participants please log in at least 10 minutes prior to the start of the presentation.


Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.



As an attorney, you may need to know how to negotiate a settlement for a client with a medical lien. Those with personal injury claims after accidents often seek legal representation to negotiate with insurance companies for compensation to cover medical costs associated with the accident.

If you’re lucky, the lien negotiation process may involve little more than presenting a demand letter and supporting documents to the insurance company and making a few calls to an insurance adjuster. However, getting the best settlement for your client is more likely to involve lengthy negotiations with the adjuster. With the tips below, we can help you negotiate the best possible settlement for your clients with medical liens.

Tips for Getting the Best Settlement When Negotiating Medical Liens

Follow the tips below to develop a settlement negotiation strategy and get your client the best possible settlement.

1. Develop a Litigation Strategy

Though it can be tempting to view each personal injury case like any other case with a familiar pattern, you should develop a unique litigation strategy for each claim rather than relying on a universal approach. At the beginning of litigation and throughout the process, speak with your client about their objectives.

Some clients want the case to end as quickly and inexpensively as possible, while others may want to pursue the best possible settlement as long as it takes. A client’s objectives could change during the litigation process, which is why it is essential to maintain candid communications throughout.

2. Identify an Acceptable Settlement Amount Range

When you compile your demand letter, you should determine what you expect for a settlement amount for your client’s claim. You can estimate the value of a claim based on the total medical expenses incurred due to the injury and income lost due to the injury. Your client’s pain and suffering may also factor in.

Determine the minimum amount you will accept for a settlement before you discuss your demand with an adjuster. Though you won’t reveal this amount to the adjuster, it’s helpful to keep this number in mind during negotiations to ensure you stay on track.

Keep in mind that you can be flexible, of course. If the adjuster identifies facts that weaken your claim, you may want to lower the minimum figure you will accept. On the other hand, if an adjust begins with an offer near your minimum, consider increasing your acceptable minimum amount.

3. Collect the Most Important Information

Each side should have all the information needed to agree to a reasonable settlement. You can ensure settlement negotiations are successful by identifying and collecting the information that will make the greatest difference for your client. If the other side wants discoverable information, produce these details before settlement negotiations. This approach is often in your client’s best interest, as withholding important information may not actually be favorable to your side.

you can ensure settlement negotiations are successful by identifying and collecting the information that will make the greatest difference

4. Sit on the First Offer

When it comes to successfully negotiating personal injury settlements, the first offer is just the start. An insurance adjuster’s first offer may be incredibly low to determine how to proceed. Even if the first offer is more reasonable and not simply a negotiating tactic, it may still be too low to accept. The purpose of negotiating is to see whether you can get more compensation for your client.

5. Make a Counteroffer

If you find the offer reasonable, make a counteroffer that falls just below the amount in your demand letter. This will demonstrate to the insurance adjuster that you are reasonable and willing to compromise with them. With some bargaining, you may be able to quickly come to a settlement amount that you both consider fair and reasonable.

6. Determine the Best Context for Discussing a Settlement

Settlement negotiations can occur in several different contexts. For example, if you have a good rapport with another lawyer, then direct negotiations may be effective, especially when money is the primary or sole topic of negotiation. If there are several variables affecting the settlement or your client wants more control in the negotiations, this may not be the best option.

If your clients or the other party desires a day in court, a settlement conference may be the best context for discussing a settlement. Keep in mind that judges are available only for a limited amount of time, and some judges don’t have mediation expertise or want to conduct settlement discussions. The occurrence of the settlement conference and whether a settlement was agreed upon will also be information available to the public.

Private mediation is another option and may be ideal if you want to keep the negotiations confidential. You and the other parties involved can agree on a mediator and select a convenient location and time to meet for negotiations. Unlike a judge, your mediator will be available as long as it takes to reach a settlement.

7. Confirm the Settlement Terms in Writing

Once you finally agree to a settlement with the insurance adjuster, confirm the settlement’s terms by putting them in writing. You will detail the terms of the settlement in a letter for the adjuster. You can keep the letter brief and include the settlement amount, the damages or injuries covered by the settlement and the specific date you expect to get the settlement documents from the insurer.

Why You Should Work With Lien Resolution Professionals

Lien resolution professionals like those at Medivest investigate subrogation claims for clients to ensure validity and identify the legitimate charges. There are several advantages to working with lien resolution professionals. Some of the benefits of utilizing our medical lien resolution services at Medivest include:

  • Expertise: At Medivest, our team of lien resolution professionals has specialized experience and knowledge to leverage while working to resolve claims.
  • Reductions: We have the negotiation skills and extensive knowledge needed to request available reductions.
  • Efficiency: We centralize tasks to ensure operations and reporting are streamlined and more efficient.
  • Lower potential liability: If you work with lien resolution professionals, you are less likely to deal with claims from insurance companies for repayment.
  • Improved client experience: Your clients will be less likely to be called by subrogation companies that are seeking direct reimbursement when we help you discover and resolve eligible liens.
  • Effective expense and time management: In your state, you may be permitted to include services from Medivest as a case related cost, allowing you to return your focus to client service.

The lien resolution professionals at Medivest can help you negotiate with lienholders, meet your client’s needs and secure a larger net settlement for them.

contact Medivest today to learn more about medicare liens and settlements

Contact Medivest Today to Learn More About Medicare Liens and Settlements

At Medivest, we work with attorneys to manage Medicare settlements and funds. Before contacting Medicare, we make sure an injured person receives coverage from other sources, such as workers’ compensation and insurance. We can help you comply with the Medicare Secondary Payer Act, as we are a leading provider of MSP compliance solutions.

If you are overworked and dealing with complex liens, partner with Medivest. We provide an array of settlement services, and we’ve celebrated big wins for lien resolution. Contact us at Medivest today to learn more about negotiating Medicare liens.



In liability or workers’ compensation settlements, all parties need to consider how the agreement affects Medicare. Typically, this assessment comes in the form of a Medicare Set-Aside (MSA) proposal or report. The MSA report is a detailed outline of anticipated expenses for the injured party. It can protect you from several adverse events and provide clear guidance throughout the course of the settlement.

Still, Medicare requirements can be complex, so you may have some questions about how MSA works and what you need to do to set it up properly. To help, we’ve put together a Medicare Set-Aside FAQ with some of the top questions.

the MSA is a portion of the settlement dedicated to future injury-related medical expenses that would otherwise be covered and reimbursed by Medicare

What Is Medicare Set-Aside?

The Medicare Secondary Payer (MSP) statute stipulates that Medicare doesn’t need to pay for an injured person’s medical expenses when another entity — such as a United States workers’ compensation law or plan — pays or can be reasonably expected to pay for the care.

Essentially, when future medical expenses are involved, the parties must try to protect Medicare’s interests and cannot shift the costs to the Centers for Medicare and Medicaid Services (CMS). To do so, settlement parties can create a Medicare Set-Aside. The MSA is a portion of the settlement dedicated to future injury-related medical expenses that would otherwise be covered and reimbursed by Medicare.

You’ll see both Workers’ Compensation Medicare Set-Asides (WCMSAs) and Liability Medicare Set-Asides (LMSA). They work similarly and cover elements like treatments, prescription drugs and administration costs. The details of the MSA account are outlined in a MSA report or proposal.

Based on many factors, such as the expected treatment and the beneficiary’s life expectancy, this report identifies the predicted costs for their medical expenses. It also provides details about the account’s usage, including whether funds are given in a lump sum or through structured annuity and information on drug frequency, dosage and predicted costs.

The funds for MSA go into a certain account and the administrator must provide detailed information about how the expenses are paid out. For instance, they may submit records of the beneficiary’s receipts for medical transactions. This step helps ensure Medicare will pay for future expenses if the funds run out.

Are Medicare Set-Asides Required?

No, MSAs are not required. However, not creating one when Medicare is likely to be involved can cause problems. Without an approved MSA report, CMS could refuse to pay for future medical expenses until the full settlement is exhausted. It could also enact priority right of recovery and take payments back from entities that received any portion of third-party payments.

While not required, MSA creates a detailed document that shows Medicare that you considered their interests during the settlement. If you submit it to CMS and receive approval, you also have documentation that CMS validated the amount and accuracy of the report.

When Is a Medicare Set-Aside Required?

Again, a MSA is not required, but CMS suggests it in the following situations:

  • When the injured individual is receiving Social Security Disability or Retirement.
  • When the injured individual is age-eligible or within 30 months of becoming a Medicare beneficiary.
  • When the injured individual is eligible for or already receiving Medicare.

CMS will review MSA proposals if:

  • The claimant is a Medicare beneficiary and the settlement totals more than $25,000.
  • The claimant is reasonably expected to enroll in Medicare within 30 months of the settlement date and the anticipated settlement amount — for future medical expenses and disability or lost wages over the life or duration of the agreement — is more than $250,000.

How Do You Calculate Medicare Set-Asides?

Calculating MSA amounts is done through a MSA report. It includes all injury-related services or items that Medicare would otherwise cover. While MSAs are generated on a case-by-case basis, some of the factors involved include:

  • Workers’ compensation fee schedules.
  • Usual and customary charges and actual charges, according to drug payment histories and claims payments.
  • Medical records and bills.
  • Facility and provider fees.
  • The individual’s age, location and other relevant details.

Can You Avoid a Medicare Set-Aside?

You can bypass the MSA, but remember, if the settlement involves future medical expenses and potential Medicare benefits, we recommend against it. Federal law under MSP prevents any attempts to shift costs to Medicare. Without the MSA, you haven’t shown that you performed due diligence and may be at risk for negative effects, like refusal to pay and right of recovery from CMS.

If CMS finds the MSA account was underfunded, it can deny payment for case-related Medicare-covered expenses up to the beneficiary’s net settlement amount, instead of just the MSA amount. Since skipping the MSA can put the injured party’s benefits at risk, the claimant’s attorneys may request one.

Can I Spend My Medicare Set-Aside Funds?

The funds from a MSA account can only be used to pay for items and services outlined in the settlement. The expenses must be related to the injury and would otherwise be covered by Medicare. These spending rules apply even if the injured person isn’t currently a Medicare beneficiary.

If funds are used in any other capacity, Medicare can deny injury-related claims until the account administrator proves that the MSA funds have been exhausted under appropriate use cases. They must show that qualifying expenses equal the entire amount of the WCMSA or LMSA.

What Happens to Unused Medicare Set-Aside Funds?

At the end of the year, any leftover funds carry over to the next year. These funds continue to roll over each year until they’re used up. Upon the death of the injured person, funds are first reimbursed to CMS for any covered outstanding medical charges. Since providers have up to 12 months from the date a service is rendered, WCMSA or LMSA accounts may be left open for a year.

After that timeframe, the unused funds can be disbursed to the injured worker’s beneficiaries according to state law, assuming other Medicare claims are satisfied.

let Medivest handle Medicare Set-Asides for your clients

Let Medivest Handle Medicare Set-Asides for Your Clients

MSAs can get complex, and CMS recommends working with a professional administrator. Medivest has been helping clients for over 25 years, simplifying MSP compliance and MSA reports.

Our MSA Allocation Reports are created by highly trained nurses, reviewed by certified coders and managed by certified MSP case managers. Although every case is different, Medivest can usually create an analysis within 10 business days. Other services involved in MSA Allocation Reports include verifying Social Security and Medicare eligibility, requesting and verifying conditional payment and generating a non-quality report.

At Medivest, we strive to deliver the highest quality standards with comprehensive and attentive service. We’ll help you prepare for the future by protecting Medicare’s interests and providing greater visibility to the parties involved in the settlement. Reach out to us today to request your MSA report or ask an expert about our services.



On Wednesday, April 13 at 1 pm EST, the Centers for Medicare & Medicaid Services (CMS) will host a webinar regarding the new “Go Paperless” option in the Medicare Secondary Payer Recovery Portal.  The Go Paperless Quick Reference Guide can be downloaded here.  The full notice can be read below:


The Centers for Medicare & Medicaid Services (CMS) will be hosting an overview of the new “Go Paperless” feature available in the Medicare Secondary Payer Recovery Portal (MSPRP). Insurers and authorized agents may now choose to opt-in to paperless functionality. Once registered, users will be able to quickly and easily access all recovery correspondence including demand letters, using the MSPRP. Opting to “Go Paperless” in combination with the ability to submit correspondence through the MSPRP and the multiple available options for electronic payment will allow your organization to not only reduce the amount of paper that needs to be physically handled, associated workload and environmental impacts, but also eliminate concerns about delays that can arise when information is sent through the mail.
The webinar will feature opening remarks and a presentation, followed by a question and answer session.
Date: Wednesday, April 13, 2022
Time: 1:00 PM ET
Webinar URL:
Conference Dial In: 800-779-1251
Conference Passcode: 6930242
Please note that for this webinar you will need to access the webinar link and dial in using the information above to access the visual and audio portion of the presentation. Due to the number of participants please dial in at least 15 minutes prior to the start of the presentation.


Additional information about recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients, please contact Medivest here or call us at 877.725.2467.



The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 3.6 on March 15, 2022. This Reference Guide replaces Version 3.5 on January 10, 2022. There are a few notable changes when comparing the two Reference Guides.  The blue highlights below indicate the updated changes provided in Reference Guide Version 3.6.
To download the new WCMSA Reference Guide v3.6 click here.
Version 3.6 of this guide includes the following changes:
Clarification has been provided regarding the use of non-CMS-approved products to address future medical care (Section 4.3), as well as documentation and re-review tips (Sections, 10.2, and 16.1).


4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care – Additions and Replacements

A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.”
42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.
As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.
Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period.
CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met. Most Frequent Reasons for Development Requests – Expanded Explanations

The five most frequent reasons for development requests by the WCRC:
    1. Insufficient or out-of-date medical records. Medical records are required documents for all submissions, including situations where the parties are in dispute.
    2. Insufficient payment histories, usually because the records do not provide a breakdown for medical, indemnity or expenses categories. Payment histories are required documents for all submissions, including situations where the parties are in dispute, and must include breakdowns for payment categories along with identification of any category codes.
    3. Failure to address draft or final settlement agreements and court rulings in the cover letter or elsewhere in the submission. Draft or final settlement agreements and court rulings are required documents for all submissions, if they exist. For settlements where conditional payments are made as an element of the agreement, the WCRC will not accept a letter indicating that draft or final settlements do not exist.
    4. Documents that are referenced in the file are not provided—this usually occurs with court rulings or settlement documents.
    5. References to state statutes or regulations without providing sufficient documentation (i.e., to which payments the statutes/regulations apply or a copy of the statute or regulation, or notice of which statutes or regulations apply to which payments).


10.2 Section 10 – Consent to Release Note – Additions

The Consent to Release note is the claimant’s signed authorization for CMS, its agents and/or contractors to discuss his or her case/medical condition with the parties identified on the authorization in regard to the WC settlement that includes a WCMSA. When you submit your WCMSA, you are required to include the signed consent, plus any applicable court papers if the consent is signed by someone other than the claimant (for example, a guardian, power of attorney, etc.). Do not include unsigned consents or consents to obtain medical records from a provider.
All consent-to-release notes must include language indicating that the beneficiary 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.
Consent to Release documents must be signed (by hand or electronically) with the full name of either the claimant, matching the claimant’s legal name, or by the claimant’s authorized representative, if documentation establishing the relationship is also provided. It must be a full signature, not just initials. For electronic standards, only the use of an E-SIGN Act-compliant e-signature or initials are considered valid.
If there is a change in submitter, please see Section 19.4 for more information.


16.1 Re-Review – Additions

A request for re-review may be submitted based one of the following:
    1. Mathematical Error: Where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred), or
    2. Missing Documentation: Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
      • Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
      • Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
      • Should no change be made upon response to a re-review request (i.e. no error was identified), additional requests to re-review the same error will not be entertained.”



The removal of the reference to indemnification in the first part of Section 4.3 seems to have been CMS’s way of expressing its realization that the intent of settling parties in using non-submit WCMSAs is to protect Medicare’s interests as opposed to being designed merely to protect against MSP exposure via a shift of risk from one company’s errors and omissions coverage to another’s.
[Old Section 4.3 phrase]: “with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries.” [New Section 4.3 phrase]: “for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide.”
Does the additional language about expectations for WC settlements that do not meet workload review threshold in Section 4.3 now really clarify what the plan for future care should be when the two examples in Section 8.1, titled Review Thresholds still describe recoveries by CMS for payments and care related to the injury up to the total value of the settlement if the settling parties fail to consider Medicare’s future interests/fail to establish “some plan for future care” ?  The referenced examples are listed below for ease of access:
Example 1: A recent retiree aged 67 and eligible for Medicare benefits under Parts A, B, and D files a WC claim against their former employer for the back injury sustained shortly before retirement that requires future medical care. The claim is offered settlement for a total of $17,000.00. However, this retiree will require the use of an anti-inflammatory drug for the balance of their life. The settling parties must consider CMS’ future interests even though the case would not be eligible for review. Failure to do so could leave settling parties subject to future recoveries for payments related to the injury up to the total value of the settlement ($17,000.00).
Example 2: A 47 year old steelworker breaks their ankle in such a manner that leaves the individual permanently disabled. As a result, the worker should become eligible for Medicare benefits in the next 30 months based upon eligibility for Social Security Disability benefits. The  steelworker is offered a total settlement of $225,000.00, inclusive of future care. Again, there is a likely need for no less than pain management for this future beneficiary. The case would be ineligible for review under the non-CMS-beneficiary standard requiring a case total settlement to be greater than $250,000.00 for review. Not establishing some plan for future care places settling parties at risk for recovery from care related to the WC injury up to the full value of the settlement.


Stay Up To Date

Count on Medivest to help you navigate your risk tolerance in light of the new CMS WCMSA Reference Guide language to see if we can’t find the right balance to reasonably protect Medicare’s interests in your settlement. Medivest will continue to monitor changes in the guidance and regulations published by CMS and will keep its readers up to date when such changes are announced/made. For questions regarding these updates, please reach out to a Medivest representative in your area by clicking here or by calling us direct at 877.725.2467.



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