On January 10, 2024, the U.S. Department of Labor published a final rule, revising its guidance to employers and workers to help determine if a worker qualifies as an employee or an independent contractor (IC) under the Fair Labor Standards Act (FLSA).  The final ruling explains that the economic reality test is comprised of six-factors that are a guide to conduct the totality-of-the circumstances analysis to determine economic dependence. The new ruling takes effect March 11, 2024. To view the final ruling, click here 

Misclassification Issues 

Employers need to distinguish between employees and independent contractors when considering eligibility for workers’ compensation. Correctly distinguishing between employees and independent contractors is crucial for legal compliance, cost management, liability avoidance, and ensuring workers receive the appropriate benefits and protections. Misclassification can have significant financial and legal consequences for employers. 

What is the Economic Realities Test?  

The US Department of Labor uses an economic realities test to help employers comply with the law, reduce the risk of employee misclassification, and to help determine if a worker is classified as an independent contractor or as an employee. This test consists of six-factors that are all weighed against each other. All factors should be considered.  No single factor determines a worker’s status.  No one factor or combination of factors is more important than the other factors.  This test considers the totality of the circumstances of the working relationship. Below are the six (6) factors. 

  1. Opportunity for profit or loss depending on managerial skill, 
  2. Investments by the worker and the employer, 
  3. Permanence of the work relationship, 
  4. Nature and degree of control, 
  5. Whether the work performed is integral to the employer’s business  
  6. Skill and initiative 


About Medivest 

Since 1996 Medivest has been helping our clients navigate the complexities of MSP compliance.  We offer settlement solutions for workers’ compensation and liability settlements. Count on Medivest to help keep you up to date with the constant updates regarding Federal Register rulings, Medicare Secondary Payer legislation and changes related to CMS’s enforcement of the Medicare Secondary Payer.  For questions, feel free to reach out to a Medivest representative in your area by clicking here or call us direct at 877.725.2467. 



CMS will be hosting a Section 111 Workers’ Compensation Reporting Webinar on Monday November 13, 2023 applicable to all primary plans considered Non-Group Health Plans (NGHP) including Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation. Section 111 is also known as Mandatory Insurance Reporting and CMS will be focus its webinar on the expansion of Section 111 Non-Group Health Plan (NGHP) Total Payment Obligation to Claimant (TPOC) reporting to include Workers’ Compensation Medicare Set-Aside (WCMSA) information.

As usual, the format will include opening remarks and then a presentation by CMS that will include background and timelines, followed by a question-and-answer session. CMS has indicated that “because this expansion impacts reporting of WCMSAs, it is strongly recommended that Responsible Reporting Entities (RREs) who report Workers’ Compensation settlements attend.”


Date:  November 13, 2023
Time:  1:00 PM ET

Webinar Link: htps://

Passcode: 100553

Or to connect via phone:

Conference Dial In: 1-833-568-8864
Conference Passcode: 160 678 9743

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 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.


Medivest will be in Denver, Colorado, for the American Association of State Compensation Insurance Funds (AASCIF) 2023 Annual Conference. During this event, you'll participate in sessions designed specifically for workers' compensation insurance professionals.


For the latest news, updates, and commentary on Medicare Secondary Payer, workers' compensation, and liability issues visit the Medivest Blog. Read up on these current topics being discussed:

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