Medicare

08/Apr/2025

Centers for Medicare & Medicaid Services (CMS) has revised the WCMSA Reference Guide to reflect recent changes in CMS policy and Section 111 reporting requirements. Version 4.3, dated April 7, 2025 has three notable changes:

1) A Notice of Settlement Received letter has been added to the Guide at Appendix 5 to support the new Mandatory Workers’ Compensation Medicare Set-Aside (WMSA) reporting requirements;

2) The one year waiting period for the Amended Review of MSAs has been removed from Section 16.3; and

3) The revised Reference Guide provides additional clarity around CMS’ change of MSA submitter policies (Sections 16.3 and 19.4).

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Sandy Simpson

29/Jan/2025

When Medicare’s interests (past and/or future) are not considered, are you aware of the unintended consequences which may affect the parties to the settlement? The Centers for Medicare and Medicaid Services (CMS) WCMSA Reference Guide v 4.2, found here, provides language regarding their views and remedies. Understanding CMS’ views and consequences is a good step in helping a party navigate the often-confusing settlement process as it relates to staying compliant with the Medicare Secondary Payer (MSP) statute.

Conditional Payment Recovery

Medicare has a right to seek reimbursement for the conditional payments it makes to providers where another payer may be responsible. The payment by Medicare is conditioned on Medicare taking on recovery at the appropriate time and therefore, is termed to be a “conditional payment” because it must be repaid to Medicare once the settlement occurs. However, when the conditional payments have not been repaid, Medicare may take the following actions:

Priority Right of Recovery or “Super Lien” – Medicare has a Priority Right of Recovery or “Super Lien” without the need to file any notice in a court. CMS states, “If Medicare’s interest is not considered, CMS has a priority right of recovery against any entity that received any portion of a third-party payment directly or indirectly – a right to recover or take back, that payment.”

Subrogation Rights – CMS states, “Medicare has a subrogation right to any such payment it has made. Subrogation means the substitution of one person or entity for another. If Medicare exercises its subrogation rights, Medicare becomes a claimant against the responsible party and/or the liability insurer/medical provider to the extent that Medicare has made payments to or on behalf of the beneficiary for services related to claims against the responsible party and the responsible party’s liability insurance. While Medicare can pursue recovery directly from the responsible party through their “pay and chase” method, utilizing subrogation is usually less common.”

Charging Interest – Additionally, Medicare may and does regularly charge interest on this type of MSP conditional payment debt when a demand has remained unpaid for 60 days. The interest rate is currently over 12%. This can be a factor in how the entities and claimants choose to address any appeals or request to waive the MSP debt. After 120 days from the debt of the demand, the MSP debt may be transferred to the Department of Treasure (DOT) for various DOT collections actions. The most common remedies exercised when the debt is referred to the DOT is the Treasury Off-Set Program or Private Collection Action (PCA).

Referral to the Treasury Department – CMS states, “When the outstanding debt has moved through Medicare’s recovery process, and it is still unpaid, the debt is referred to the Treasury Offset Program (TOP) for further collection activities. The TOP may garnish the beneficiary’s Social Security benefits or seize the primary plan’s federal tax refund.”

Referral to the Department of Justice – CMS states, “The Centers for Medicare and Medicaid Services (CMS) may refer the debt to the Department of Justice (DOJ) for legal action if it determines that the required payment or a properly documented defense has not been provided. The law authorizes the Federal government to collect double damages from any party that is responsible for resolving the matter, but which fails to do so.”

CMS’s Views – NSMSA / EBMSA / WCMSA

CMS has stated that there are no statutory or regulatory provisions requirements to submit a WCMSA amount proposal to CMS for review. As a result, there has been an increase in defendants using Non-Submit Products – MSAs (NSMSA) or Evidence-Based MSAs (EBMSA) instead of having the traditional WCMSA Arrangement prepared and submitted to CMS for review. While there are some similarities in these reports in respect that they each attempt to estimate the future Medicare covered medicals which are likely to be encountered by the injured party after settlement, there are substantial differences in the projection methodology that could open settling parties up to risks.

Non-Submit Medicare Set-Aside (NSMSA) Report – The NSMSA report meets workload review thresholds but is a report (by definition) is not submitted to CMS for review and approval. The defendant may decide to use a non-submit MSA allocation report to speed up the settlement process and because it often projects a lower amount of money for the claimant’s future injury-related Medicare covered medicals (FIRMCM) than a traditional WCMSA written by the WCMSA Reference Guide standards.

Evidence-Based Medicare Set-Aside (EBMSA) Report – The EBMSA report is based on the injured party’s medical records and research trends. When an EBMSA report is used, the parties do not intend to submit the EBMSA to CMS for review and approval. The report’s projection would be guided by evidence-based medicine standards with the treating physician’s recommendations. It uses established evidence-based standards of care to create a medically and legally defensible assessment of the injured party’s future medical needs.

WCMSA Arrangement – The WCMSA report follows CMS’ guidelines when preparing reports and submitting to CMS for review. As part of CMS’ guidelines, they required the report to use average wholesale prices (AWP) to price Medicare Part D drugs, confirm jurisdiction to apply correct fee schedules for treatments, and to use ICD-10 mandatory diagnosis and procedure codes. When reviewing the WCMSA, CMS assesses whether the proposed amount of funds set aside for future medical expenses aligns with Medicare’s standard of care protocols, essentially checking if the proposed treatment plan and cost are considered reasonable and appropriate based on Medicare guidelines for similar conditions.

CMS’ Views – Traditional WCMSAs Arrangements

Below are some of CMS’ views found in section 3.0 of the WCMSA Reference Guide:

“Medicare may also refuse to pay for future medical expenses related to the WC injury until the entire settlement is exhausted.”
“The WCMSA amount review process is the only process that offers both Medicare beneficiaries and Workers’ Compensation entities a finality, with respect to obligation for medical care required after a settlement, judgement, award, or other payment occurs.”
“Once the CMS-approved set-aside amount is exhausted and accurately accounted for to CMS, Medicare will pay primary for future Medicare-covered expenses related to the WC injury that exceed the approved set-aside amount.”

Changes to WCMSA Ref Guide -Section 4.3 – Non-Submit MSA Products

The Medivest blog written on February 3, 2022, titled The Further Review of Section 4.3 of the New WCMSA Reference Guide found here, which outlines the consequences when using the Non-Submit MSA’s products. Below are some of the primary takeaways from that blog:

The party with the most to lose is the beneficiary. The primary consequence referenced in 4.3 is denial of payment for the beneficiary’s injury-related care in the event of MSA exhaustion. CMS says it will continue to deny payment until the entire net settlement has been fully spent down (not the total MSA amount). This could occur in events of permanent exhaustion or during temporary exhaustion periods, when the beneficiary’s MSA is exhausted until the next funding payment is received. Keep in mind that this doesn’t apply to MSAs that do not meet the review threshold. Also, there is an appeal process for denial of payment. But the greatest risk-bearer is the applicant.
Since MSA exhaustion represents the greatest risk to the applicant, a program of proper funds administration is preferable. A burden shift to Medicare can only occur once Medicare becomes the primary payer. An MSA that remains solvent will maintain Medicare’s payment position as secondary indefinitely. While it is impossible to foresee every expense that an MSA may incur over an applicant’s lifetime, a properly funded MSA in the hands of a competent administrator is the best protection of the interests of both Medicare and the applicant.
Thoughtful consideration should be given to the adequacy of an evidence-based or non-submit program. It is entirely possible to produce a fully adequate and reasonable MSA without CMS’s review and approval. However, not all products are created equally. It’s important to be confident that the methodology in use produces MSAs that consider Medicare’s interests sufficiently.

Mismanagement of WCMSA Accounts

An injured party may choose to self-administer their WCMSA funds or have it professionally administered. However, in either case when the funds have not been properly managed and have been misspent, the consequences could be:

If the WCMSA account is not set up, the beneficiary’s Medicare eligibility could be in jeopardy at least to the extent of the injury related FIRMCM claims.
Funds may need to be added to the WCMSA before Medicare pays for FIRMCM.
Medicare can deny payment of future injury-related medicals if the WCMSA funds are not properly used or exhausted.
If the carrier fails to report ORM and/or TPOC/Settlements timely, the carrier may be fined for Civil Monetary Penalties starting in April of 2025 as described in a previous blog. If attestations are not timely delivered to CMS for WCMSA’s, Medicare may deny injury-related treatment until reporting is corrected.

Need for Professional Administration

The mismanagement of funds can negatively affect the beneficiary’s Medicare benefits and delay treatment. That’s why hiring a Professional Administrator can help remove the burden from the injured party/beneficiaries from paying claims, managing funds, and providing attestation report to CMS. Keep in mind CMS states, “Although beneficiaries may act as their own administrators, it is highly recommended that settlement recipients consider the use of a professional administrator for their funds.”

How to Avoid Medicare’s Consequences

Call Medivest 877.725.2467 to speak with one of our case consultants who will help you navigate a plan that evaluates Medicare’s past and future interests in a settlement or hopeful settlement.
Medivest investigates and assists with the resolution of Medicare’s conditional payments in WC claims on behalf of an employer/carrier/TPA and can act as the eyes of the claimant to make sure that the carrier is paying its share of accepted injury related conditional payments.
Medivest investigates and assists with the resolution of Medicare’s conditional payments, or those of Medicare Advantage Plans (Part C), Prescription Drug Plans (Part D), Department of Veterans Affairs (VA), TRICARE, ERISA, and privately administered insurance plans for liability cases when referred to by the plaintiff’s attorney.
Medivest prepares WCMSA, LMSA and Medical Cost Projection (MCP) reports
Medivest submits WCMSA allocation reports to CMS for review when allowed and desired.
Medivest professionally administers MSA Funds for WC and Liability MSAs. Hire Medivest for Professional Administration to manage the MSA funds.

About Medivest

Founded in 1996, Medivest is a national Medicare Secondary Payer (MSP) compliance company and provider of settlement solutions. Our focus is assisting anyone settling a workers’ compensation or personal injury claim to understand their obligation to consider Medicare’s interests under federal law. Medivest provides pre- and post-settlement solutions that help mitigate exposure from that obligation. Contact us today at 877-725-2467 or at medivest.com/contact-us.

Sandy Simpson

29/May/2024

When resolving a workers’ compensation case, the employer looks to see if the injured employee is a Medicare beneficiary and if there will be injury-related future medical care. If the answer to both questions is yes, then they must comply with the guidelines set forth by the Medicare Secondary Payer (MSP) statute.

With healthcare and Medicare costs on the rise and as the open claim moves through the settlement process, below are some settlement objectives to help keep costs down and stay MSP compliance.

WCMSA Arrangement: Centers for Medicaid and Medicare Services (CMS) recommends this method to ensure that Medicare’s interests are protected when settling a workers’ compensation claim that includes future medical expenses. Note that the WCMSA Arrangements are prepared based on today’s costs.
MSP Compliance: Employers are mandated to follow the MSP statute; it will ensure Medicare compliance when considering Medicare’s interest in the settlement. Failure to do so, you could face legal consequences from breaching the settlement agreement. CMS can also obtain reimbursement of injury related payments made from anyone involved in the settlement, including the worker, workplace, insurance companies and attorneys.
Cost Control: Striving to move an open claim toward settlement in the least expensive manner.
Future Medical Care: Employers can help prioritize the injured employee’s well-being for future medical care after settlement by hiring Medivest for Professional Administration services. Medivest Professional Administration ensures the Medicare Set-Aside (MSA) funds are spent according to the allowable guidelines whereby preserving the MSA dollars.

When to Request a WCMSA?

A WCMSA is a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness, or disease that would normally be covered by Medicare. All parties involved in a workers’ compensation case have significant responsibilities under the MSP statute to protect Medicare’s interests when resolving cases that include future medical expenses.

Does the settlement contemplate future medical needs?
Is the injured employee eligible or receiving Medicare benefits?
Has the injured employee applied or re-applied for Social Security Disability Insurance (SSDI)?
Is the injured employee 62.5 years old?

Common WCMSA Cost Drivers

When a Medivest WCMSA Arrangement is ordered, a Cost Driver Analysis report will be included. A Cost Driver Analysis report identifies the various costs that are driving up the WCMSA amount, such as opioids, injections, and surgeries. Below are some common WCMSA cost drivers when a report is prepared.

Poly Pharmacy: The use of multiple drugs and lifetime pharmacy costs.
Implantable Devices: Devices such as spinal cord stimulators, intrathecal pain pumps which also includes replacement cost and mediation refills.
Surgeries and Replacement Costs: Non planned surgeries.

WCMSA Cost Mitigation Strategies

When carriers and employers optimize cost mitigation strategies, they can achieve an accurate and timely settlement. The following are examples of helpful strategies.

RX Drug Cost: Reducing prescription drug costs can be used as a pre-MSA strategy by weaning/tapering off some medications, choosing a generic substitution, or using a physician letter (to address changes in medications.
Cost Drivers: Identify treatments or medications that are driving up the total amount of the WCMSA. Review and possibly implement the recommendations provided in the Cost Driver Analyst report to help reduce the WCMSA amount.
Rated Age: If medical records show evidence of a reduced life expectancy, then a Rated Age may be obtained and used when calculating the WCMSA. CMS approves Rated Ages when used in WCMSAs which reduces the life expectancy thus reducing the overall amount of the WCMSA figure.
Structured Settlement: Fund the MSA with a structured settlement instead of a lump sum. CMS approves MSAs to be structured and Medicare will cover expenses for the injured employee during temporary exhaustion if the MSA allocation was approved by CMS. Also, utilizing a structure can provide significant cost savings for the funding party compared to a lump sum payment.

Ready To Order Your WCMSA?

Begin by completing an online referral by clicking here and upload the following documents.

Most recent 2 years of medical records
Most recent 2 years of Rx invoice
Most recent 2 years of indemnity payouts (Work Comp cases only)

About Medivest

Medivest has worked with carriers and employers for over 2 decades to understand their unique needs and responsibilities to their injured workers. Every WCMSA Arrangement is produced by a highly trained nurse that possesses a wealth of knowledge and experience in the preparation of these reports. We understand that creating and maintaining a WCMSA can be complex, let Medivest prepare your next report. Our nurses and staff hold industry certifications or designations including CMSP, CMSP-F, CPC, MSCC, CSSC, JD, RN, and BSN.

Natt Reifler, Esq., CMSP, VP of MSP Compliance

21/Jun/2023

Some people may be surprised to learn that an individual does not always need to be a citizen of the United States to qualify for government benefits such as Social Security Income (SSI), Social Security Disability Insurance (SSDI) or Medicare. Provided the individual receives or qualifies to receive SSI or SSDI benefits, and the person otherwise qualifies for Medicare, a non-US citizen (non-citizen) typically qualifies for Medicare Part A without having to pay a premium. They would still need to pay a premium for Medicare Part B. Before addressing how a non-citizen may become eligible to receive Social Security benefits and therefore, be one step closer to qualifying for Medicare, we will first look at the distinctions between SSI and SSDI and how US citizens become eligible for either.

SSDI and SSI Requirements for U.S. Citizens

For U.S. citizens to qualify for SSDI, they must be under 65, have earned enough work credits¹ by working and paying Social Security (FICA) taxes, and have a qualifying disability sufficient to meet the definition designated by the Social Security Administration (SSA). A majority of those who apply for SSDI do not get accepted on the first try. Many injured individuals have found value in retaining attorneys to help with the application (and the commonly required appeals) process.

A major distinction between SSDI and SSI is that SSI does not require any work history or the need for the individual to be disabled, even though disability is one of the ways a person may qualify for SSI. For example, those that are disabled but haven’t accumulated enough work credits to be eligible for SSDI, may qualify for SSI. Furthermore, U.S. citizens who are 65 or older, or who are blind or are disabled, and have limited income and limited resources, and are not confined to an institution, are generally eligible for SSI. Another important distinction between SSDI and SSI is that once a person receives SSDI benefits for two years² , the SSDI recipient will be eligible for Medicare benefits.

Requirements for Non-U.S. Citizens

If a person is a non-citizen and meets the following requirements, they may be eligible for Social Security benefits:

Non-citizens who are legal permanent residents
Active members or veterans of the U.S. military
Foreign workers who have paid FICA taxes for the required time period³
Other non-citizens who are not permanent residents but who can prove that they are here legally (i.e., refugees, those under political asylum, temporary visitors with non-immigrant visas, abuse victims, etc.)

There are many exceptions and rules regarding non-citizens’ status and SSI and SSDI eligibility. Additionally, non-citizens that are allowed to work in the US but not required to pay FICA taxes (and don’t), are not eligible for SSDI.

Aside from standard SSDI eligibility requirements that everyone must meet*, there are two additional requirements that non-citizens must meet in order to qualify for SSDI:

1. If an individual was assigned a Social Security number on or after January 2, 2004, the individual’s number must have been assigned based on their authorization to work in the U.S. or they must have B-1, D-1, or D-2 worker status.
2. Before receiving disability benefits, the individual must show proof that they are in the U.S. legally.

Non-Citizens Returning to their Countries

Once an individual receives either type of Social Security benefits as a non-citizen, if, when and how these benefits will be distributed depends on the country that they are citizens of and how much time they may spend in that country, whether that country is on a restricted list, and whether that country has a bilateral Social Security agreement with the U.S. Some countries that the SSA is restricted from sending Social Security payments to, such as those listed below, are disqualified from accepting Social Security payments.

- Azerbaijan
- Belarus
- Cuba
- Kazakhstan
- Kyrgyzstan
- Moldova
- North Korea
- Tajikstan
- Turkmenistan
- Ukraine
- Uzbekistan
- Vietnam

Ineligible Countries

Legal residents from Cuba, North Korea, and Vietnam may not receive disability benefits, even if they meet the other necessary requirements.

If a citizen of one of the above-listed countries, other than from Cuba, North Korea or Vietnam, goes back to their home country after working and living in the U.S. and otherwise qualifies for a form of Social Security Benefits, the SSA will not send the individual payments and cannot send the payments to someone else on their behalf (unless an exception is granted). The SSA will withhold these payments and will only send them to the individual once they are in a country to which the U.S. may send those payments. Generally, if the SSA is not restricted from sending payments to a particular country, but the country also does not have a bilateral Social Security agreement in place with the U.S., the SSA can send payments to the individual, but will stop the individual’s payments after the person has been outside of the U.S. for six months. If the individual returns to the U.S. and stays for at least a month, they are usually eligible to begin receiving benefits again. The SSA’s website provides information and exceptions concerning these matters including the difference between a person receiving benefits based on their own earnings or residency in the U.S. versus receiving benefits based on the earnings or residency in the U.S. of a dependent or survivor. A pamphlet that provides additional information is available on SSA’s website.

The Medicare Secondary Payer Act (MSP), 42 U.S.C. §1395y(b)(2), enacted in 1980 and aimed at preserving Medicare Trust Funds and reigning in Medicare costs that had up to that point been much larger than projected⁴ , is focused on both the timing of payments and the recovery of Medicare’s conditional payments⁵ for medical expenses⁶ of injured Medicare beneficiaries or injured people who have a reasonable expectation of becoming Medicare beneficiaries within 30 months from settlement, when another (primary) payer is responsible for payment or prompt reimbursement of the injured individual’s injury related Medicare covered medical expenses.⁷ There are several ways people fall into the reasonable expectation of becoming a Medicare beneficiary within 30-month time frame, including reaching 62.5 years of age, applying for SSDI, being denied but considering appeal of SSDI denial, being in the process of appealing the denial, or being diagnosed with end-stage renal disease or ALS, a/k/a Lou Gehrig’s disease.

Contact Us

If you have additional questions regarding government benefits for your clients, please reach out to us here. Additionally, if you are involved in a settlement with a client whose government benefits may be at risk, Medivest would like to provide you with the following data chart. It summarizes a variety of public benefit programs and the best course of action you can take to ensure your clients’ benefits are protected. Click here to download.

The number of work credits needed varies based on the age of the individual at the time they become disabled. Required credits start at 6 credits or 1.5 years of work during the three-year period before the disability started for people disabled in or before the quarter they turn 24 years of age and move up to a requirement for 40 qualifying quarters at or after they turn 62 years of age, with varying requirements in between. []
The two-year requirement does not include the approximate six-month wait time between the date disability is approved and benefits begin. Eligibility begins 30 days after the established onset date (EOD) so along with a mandatory five-month waiting period, it is essentially six months before payments start or 30 months from EOD to Medicare eligibility. []
*According to the SSA website, the required work requirements for non-citizens seem to be different from those of US citizens as well. The requirement for non-citizens does not appear to have a sliding scale for work credits that US citizens are required to have. Here is an example of some non-citizen requirements for SSDI eligibility from SSA’s website: “[t]hey are a Lawfully Admitted for Permanent Residence (LAPR) with 40 qualifying quarters of earnings. Work done in the US by a person’s spouse or parent may also count toward the 40 qualifying quarters of earnings, but only for getting SSI. Quarters of earnings earned after December 31, 1996 are not counted if the individual, spouse, or parent worked or received certain benefits from the U.S. government based on limited income and resources during that period. If a person entered the U.S. for the first time on or after August 22, 1996 they may not be eligible for SSI for the first five years as a LAPR, even if they have 40 qualifying quarters of earnings.” More information regarding this topic is available here. Sometimes depending on the country of citizenship, there may also be other ways for a non-citizen to qualify for SSI including living in the US for required periods of time or having a spouse or parent who has lived long enough in the U.S. (See https://www.ssa.gov/pubs/EN-05-10137.pdf). You are encouraged to consult with an attorney practicing in the SSI and SSDI benefits field to help determine whether any particular person may qualify for Social Security benefits. []
Humana Med. Plan, Inc. v. Western Heritage Ins. Co., 2018 WL 549834 (11^th Cir. Jan. 25, 2018) declining to rehear 2016 11^th Cir. case en banc and citing 5 James B. Wadley, West’s Federal Administrative Practice §6305 2017. []
Or conditional payments by Medicare Advantage Plans that a primary payer should have paid. []
Medical items, services, and expenses, including prescription drug expenses. []
42 U.S.C. § 1395y(b)(2)(A)(ii) prohibits Medicare from making payment to the extent that “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance.” Furthermore, under the Code of Federal Regulations, the Centers for Medicare and Medicaid Services (CMS) has rights to recover any conditional payments Medicare made that a primary payer should have made or reimbursed, specifically, “CMS may initiate recovery as soon as it learns that payment has been made or could be made under workers’ compensation, any liability or no-fault insurance, or an employer group health plan.” 42 C.F.R. § 411.24(b). []

Medivest

22/May/2023

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- 173SEC111-comments@cms.hhs.gov.

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

Webinar Link: https://cms.zoomgov.com/j/1601170809?pwd=YU1YN3BGYjhKWTNBR3AyT3o4emFWQT09

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.

Medivest

17/Nov/2022

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- 173SEC111-comments@cms.hhs.gov.

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

Webinar Link: https://cms.zoomgov.com/j/1604816351?pwd=QmlUVUl1MkU4Y3htY1J0M0tUN3hoUT09

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.

Sandy Simpson

15/Nov/2022

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 3.8 on November 14, 2022. This Reference Guide replaces Version 3.7 which was released on June 6, 2022. There are a few notable changes when comparing the two Reference Guides.

CMS’s Version 3.8 Reference Guide, Section 1.1 includes the following changes:

Changes in This Version of the Guide Version 3.8 of this guide includes the following changes: Clarification has been provided regarding re-review requests when errors exist in the submission documentation, as well as re-review limitations (Sections 16.1 and 16.2). Note: These re-review changes are only available for approvals from September 1, 2022 forward.

To download the new WCMSA Reference Guide v3.8 Click Here.

For your convenience, we have included the entirety of Section 16.1 and 16.2, so you will have the most up to date information regarding the process of re-review:

16.1 Re-Review

When CMS does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is no formal appeals process. However, there are several other options available. First, the claimant may provide the WCRC with additional documentation in order to justify the original proposal amount. If the additional information does not convince the WCRC to change the originally submitted WCMSA amount and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement. Medicare will exclude its payments for the medical expenses related to the injury or illness until WC settlement funds expended for services otherwise reimbursable by Medicare use up the entire settlement. Thereafter, when Medicare denies a particular beneficiary’s claim, the beneficiary may appeal that particular claim denial through Medicare’s regular administrative appeals process. Information on applicable appeal rights is provided at the time of each claim denial as part of the explanation of benefits.

A request for re-review may be submitted based one of the following:

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

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.

Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual. Note: This submission option is only available for approvals from September 1, 2022 forward.

- Examples include, but may not be limited to; medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.

Re-review shall be limited to no more than one request by type.

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.

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Sandy Simpson

19/Oct/2022

During the settlement process, a personal injury attorney needs to consider what government/public benefits their client is enrolled in and what they may be eligible for in the future. Several questions need to be asked. Have you considered Medicare’s interest in the settlement? How will the settlement proceeds be handled? Will a lump sum payment disqualify them from their government benefits? These questions need to be addressed because a client’s settlement could have long-lasting financial implications.

When it comes to settling a case with public benefits there are many nuances to consider. Hiring a team of experts such as an Elder and Special Needs Law Attorney, a Structure Settlement Broker, a Medicare Set-Aside (MSA) Allocator, and/or a Trust Advisor can assist you in protecting your client’s benefits and preserving the settlement proceeds.

Getting Familiar With Public Benefits

Public benefits can either be federal or state-run programs. If the benefits program is run by the state, each state has its own set of criteria for eligibility. Needs-based public benefits are also known as asset means-tested public benefits. Asset means-tested means that eligibility is based on an individual’s income level and assets. To learn more about all the different types of government benefits Gov/Benefits.

Government benefits are categorized into two types which are Needs-Based Benefits and Entitlement Benefits.

Needs-Based Benefits – Also referred to as “means-tests,” these are based on an individual’s income and/or assets
Non-Needs Based Benefits Aka Entitlements Based – These are determined by what an individual has contributed or paid into a given benefits system

Common Government Benefits

Below is a list and summary of the most frequently used government benefit programs. However, this is not a complete list, and a full investigation of a client’s use of government benefits should be conducted before the settlement process begins.

Government national health insurance program in the United States, begun in 1965 under the Social Security Administration and now administered by the Centers for Medicare and Medicaid Services. It is intended for people who are 65 or older, certain younger people with disabilities, and people with end-stage renal disease.

Social Security Disability (SSDI)

Payroll tax-funded federal insurance program of the United States government. It is managed by the Social Security Administration and designed to provide monthly benefits to people who have a medically determinable disability that restricts their ability to be employed.

Social Security Income (SSI)

Means-tested program that provide cash payments to disabled children, disabled adults, and individuals aged 65 or older who are citizens or nationals of the United States.

Medicaid

Health coverage programs operated by states, within broad federal guidelines. Although the federal government pays a portion of the costs, Medicaid is administered and operated by states, and each state’s program is different and based on the needs and goals of the individual state.

Medicaid Adult / Disability-Based

Permanently disabled & unable to work
Only Income Test applies in California
Income & Asset Test applies
Supplemental Security Income (SSI) recipients
In-Home Support Services (IHSS) recipients
Home & community-based waivers participants
Long-Term Care Facility residents

Medicaid Adult / Non-Disability Based

Able to work & income is below the Federal Poverty Level (FPL)
MAGI Medicaid on household income
Assets are not counted toward
Pregnant women

Medicaid – Children Health Insurance Program (CHIP)

This program is administered by the United States Department of health and Human Services that provides matching funds to states for health insurance to families with children.

Section 8 – Housing Assistance

The housing choice voucher program aids very low-income families to afford decent, safe, and sanitary housing. Housing can include single-family homes, townhouses and apartments and is not limited to units located in subsidized housing projects. Housing choice vouchers are administered locally by Public Housing Agencies (PHAs).

Veterans Administration (VA)

The United States Department of Veterans Affairs of the federal government providing life-long healthcare services to eligible military veterans at VA medical centers and outpatient clinics.

Our Complimentary Reference Guide for Government Benefit Protection

For further information on how to protect your clients’ government benefits after a settlement, Medivest would like to provide the following data chart. It summarizes a variety of public benefit programs and the best course of action you can take to ensure their benefits are protected. Click here to download.

Sandy Simpson

15/Aug/2022

Consider this scenario: you are a personal injury attorney, and you get a call from a new client who is 63 years old and is interested in settling her automobile accident case. Per the Medicare Secondary Payer statute and as part of the case workup, you need to make sure you are not shifting the burden to Medicare.

What is the Medicare Secondary Payer Statute?

The MSP statute was passed by Congress in 1980 in order to protect the financial integrity of the Medicare Trust Fund. Per this statute/law, Medicare is a secondary payer for workers’ compensation, no-fault insurance, liability insurance, self-insured plans, and employer group health plan insurance. According to the MSP regulations, these other sources of health care coverage are to be the primary payer, with Medicare being the secondary form of payment.

What is a Medicare Set-Aside (MSA) Proposal?

A MSA proposal is a detailed report indicating the anticipated Medicare allowable, Injury-related expenses for the remainder of the injured individual’s life expectancy. It is a calculation that determines a dollar amount that should be “set aside” as part of the settlement process to satisfy the Medicare Secondary Payer Statute (MSP) and to avoid shifting the burden to Medicare.

Guidance from Medicare for Liability Cases

The Centers for Medicare and Medicaid Services (CMS) published the WCMSA Reference Guide to help attorneys understand the process CMS uses for approving proposed Workers’ Compensation MSA (WCMSA) arrangements. The purpose of the WCMSA Reference Guide was to consolidate and supplant all the historical CMS memos into a single point of reference.

However, Workers’ Compensation and Liability settlements have several different nuances. CMS has yet to release the long-awaited LMSA Reference Guide for liability settlements, despite announcing its intention to do so in 2018. Given the current lack of guidance concerning Liability MSAs from CMS, attorneys should look to the WCMSA Reference Guide for guidance when settling their liability cases.

Litmus Test – Is a MSA Proposal Recommended?

In order to determine if a MSA allocation is recommended to cover Medicare’s interest in your settlement, there are several key items to review. Attorneys can do a quick MSA litmus test to determine whether or not a MSA is recommended.

Your client is currently Medicare-eligible
Your client is 62.5 years old and within 30 months of becoming eligible for Medicare benefits
Your client has either applied for Social Security Disability Insurance (SSDI) or has an open or pending application Will there be any money after medical liens have been resolved to fund a Medicare Set-Aside (MSA) account?

Medicare Eligibility

What is Medicare’s criteria for an individual to become Medicare eligible? Medicare is available for people aged 65 or older, younger people with disabilities, and people with End Stage Renal Disease (permanent kidney failure requiring dialysis or transplant).

Social Security Disability Insurance (SSDI)

An individual who has either applied or has reapplied for Social Security Disability Insurance can become Medicare eligible. Social Security Disability Insurance (SSDI) is a federal program that helps those who have become disabled from work. An individual can apply for SSDI when:

A person is unable to engage in any “substantial gainful activity” due to an illness or disability and;
When a person is not able to return to work for 12 months or more and;
When a person has accumulated enough work credits in the last 10 years to qualify.

30 Months to Become Medicare Eligible

The reason why it takes 30 months to become Medicare eligible after the individual has either applied or reapplied for SSDI is that:

The individual needs to wait one month after the date of injury to apply for SSDI.
After the SSDI applicate date, there is a waiting period of 5 months to receive SSDI entitlement.
From the date of SSDI entitlement, Medicare has 24 months waiting period to become Medicare eligible.

Medicare Set-Aside (MSA) – Not Required by Law

Did you know that a Medicare Set-Aside is not required by law? You should know the risks if you choose not to have a MSA prepared, by understanding CMS’ interpretation regarding MSP compliance. In the event there was a failure to address Medicare’s interest in the settlement, Medicare may refuse to pay future medical expenses that are injury-related until the entire settlement is exhausted.

Best Practices

Our highly trained Medicare Expert Case Advisors can help you figure out if Medicare may have an interest in your settlement. We assist all settling parties to navigate the MSP complexities and provide you with cost-saving strategies for your settlement.

To receive our complimentary MSA Decision Tree, “When Is a MSA Allocation Recommended?” click here.

Craig Pawley, Vice President of Business Development

06/Jul/2022

Over the past 17 years of working in the MSP compliance industry, I have noticed that few things can cause as much confusion when it comes to Medicare eligibility for children/kids. This blog is intended to clear up some of the confusion surrounding Medicare benefits for children to assist with settlement planning.

Medicare defines children/kids as anyone who is under the age of 22 and unmarried. Once a child/kid qualifies for Medicare benefits, they can keep Medicare coverage until the age of 26, as long as they are unmarried and continue to meet the qualifications.

Medicare coverage for kids is available but only in limited circumstances. For a child to be eligible for Medicare benefits, the following criteria must be met:

The child must have End Stage Renal Disease (ESRD) and need regular dialysis treatments or have recently had a kidney transplant
The child must have a parent or legal guardian who has earned at least six Social Security (SS) work credits in the last 3 years or is currently receiving Social Security Retirement benefits

Medicare defines a parent or legal guardian as either biological, adoptive, or stepparent. If the child is in the care of stepparents, the stepparents need to have been the child’s stepparents for at least one year for the child to be eligible for Medicare benefits if the other criteria have been met.

If the criteria have been met, the child will continue to receive Medicare benefits until 12 months after the last dialysis treatment or 3 years after a kidney transplant. Medicare coverage can restart if additional treatment is needed for ESRD.

If a child is between the ages of 20 and 22 and meets a few additional requirements, they may be eligible for Medicare benefits. Those additional requirements are:

The individual has been receiving Social Security Disability Insurance (SSDI) for at least 24 months
The disability began before the age of 18
The disability prevents the individual from working and is expected to last longer than one year

It is uncommon for a child to be eligible for Medicare benefits, but it is possible. Suppose you are settling a case for a minor who currently has ESRD or is between the ages of 20 and 22 and has a qualifying disability that started prior to age 18. In that case, there is a possibility that they may currently be receiving Medicare benefits.

If you are settling a case for a child who currently receives Medicare benefits, it is important to properly address Medicare as part of the settlement. Considering Medicare’s interests in settlements is how an injured party does their part in complying with the Medicare Secondary Payer Statute (MSP). This includes addressing past medical/conditional payments (Medicare liens) as well as Future Medical/conditional payments because the MSP does not distinguish between pre and post-settlement conditional payments. Considering Medicare’s past and future interests will ensure that the burden for payment of future medical treatment isn’t being shifted to Medicare and that Medicare benefits for the individual will be protected.

If you have additional questions on how to address Medicare’s past or future interests in a case, please click here.

Older Posts

For Additional Information

Conditional Payment Recovery

CMS’s Views – NSMSA / EBMSA / WCMSA

CMS’ Views – Traditional WCMSAs Arrangements

Changes to WCMSA Ref Guide -Section 4.3 – Non-Submit MSA Products

Mismanagement of WCMSA Accounts

Need for Professional Administration

How to Avoid Medicare’s Consequences

About Medivest

When to Request a WCMSA?

Common WCMSA Cost Drivers

WCMSA Cost Mitigation Strategies

Ready To Order Your WCMSA?

About Medivest

SSDI and SSI Requirements for U.S. Citizens

Requirements for Non-U.S. Citizens

Non-Citizens Returning to their Countries

Ineligible Countries

Contact Us

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

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:

Webinar Link: https://cms.zoomgov.com/j/1604816351?pwd=QmlUVUl1MkU4Y3htY1J0M0tUN3hoUT09

CMS’s Version 3.8 Reference Guide, Section 1.1 includes the following changes:

To download the new WCMSA Reference Guide v3.8 Click Here.

For your convenience, we have included the entirety of Section 16.1 and 16.2, so you will have the most up to date information regarding the process of re-review:

16.1 Re-Review

A request for re-review may be submitted based one of the following:

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.

Examples include, but may not be limited to; medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.

Re-review shall be limited to no more than one request by type.

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.

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Getting Familiar With Public Benefits

Government benefits are categorized into two types which are Needs-Based Benefits and Entitlement Benefits.

Needs-Based Benefits – Also referred to as “means-tests,” these are based on an individual’s income and/or assets

Non-Needs Based Benefits Aka Entitlements Based – These are determined by what an individual has contributed or paid into a given benefits system

Common Government Benefits

Below is a list and summary of the most frequently used government benefit programs. However, this is not a complete list, and a full investigation of a client’s use of government benefits should be conducted before the settlement process begins.

Medicare

Social Security Disability (SSDI)

Payroll tax-funded federal insurance program of the United States government. It is managed by the Social Security Administration and designed to provide monthly benefits to people who have a medically determinable disability that restricts their ability to be employed.

Social Security Income (SSI)

Means-tested program that provide cash payments to disabled children, disabled adults, and individuals aged 65 or older who are citizens or nationals of the United States.

Medicaid

Health coverage programs operated by states, within broad federal guidelines. Although the federal government pays a portion of the costs, Medicaid is administered and operated by states, and each state’s program is different and based on the needs and goals of the individual state.

Medicaid Adult / Disability-Based

Permanently disabled & unable to work

Only Income Test applies in California

Income & Asset Test applies

Supplemental Security Income (SSI) recipients

In-Home Support Services (IHSS) recipients

Home & community-based waivers participants

Long-Term Care Facility residents

Medicaid Adult / Non-Disability Based

Able to work & income is below the Federal Poverty Level (FPL)

MAGI Medicaid on household income

Assets are not counted toward

Pregnant women

Medicaid – Children Health Insurance Program (CHIP)

This program is administered by the United States Department of health and Human Services that provides matching funds to states for health insurance to families with children.

Section 8 – Housing Assistance

Veterans Administration (VA)

The United States Department of Veterans Affairs of the federal government providing life-long healthcare services to eligible military veterans at VA medical centers and outpatient clinics.

Our Complimentary Reference Guide for Government Benefit Protection

What is the Medicare Secondary Payer Statute?

What is a Medicare Set-Aside (MSA) Proposal?

Guidance from Medicare for Liability Cases

Litmus Test – Is a MSA Proposal Recommended?

In order to determine if a MSA allocation is recommended to cover Medicare’s interest in your settlement, there are several key items to review. Attorneys can do a quick MSA litmus test to determine whether or not a MSA is recommended.

Your client is currently Medicare-eligible

Your client is 62.5 years old and within 30 months of becoming eligible for Medicare benefits

Your client has either applied for Social Security Disability Insurance (SSDI) or has an open or pending application Will there be any money after medical liens have been resolved to fund a Medicare Set-Aside (MSA) account?