MSA Frequently Asked Questions

Medicare takes the position of a secondary payer in cases where there is another culpable party, such as an employer and its workers’ compensation insurance carrier or a liability insurer as set forth in the Medicare Secondary Payer Act 42 U.S.C. §1395y and 42 C.F.R §411.20, et al. The purpose of the Medicare Set-Aside arrangement (MSA) is to provide funds to the injured party to pay for future medical expenses that would otherwise be covered by Medicare, known as “qualified medical expenses”. If the injured party incurs qualified medical expenses that exhaust the anticipated set-aside sum, Medicare will pay for allowable expenses in excess of the properly exhausted MSA funds. By establishing a Medicare Set-Aside Account, parties to a settlement are protecting Medicare’s interest and complying with the Medicare Secondary Payer Act.

A WCMSA meets CMS’ criteria for review when: A.The Claimant is currently a Medicare beneficiary and the total settlement value is greater than $25,000. -or- B. The Claimant has a “reasonable expectation“ of Medicare enrollment within thirty (30) months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000. Claimants have a “reasonable expectation” of enrollment where: (1) The claimant has applied for Social Security Disability Benefits. (2) The claimant has been denied Social Security Disability Benefits but anticipates appealing that decision. (3) The claimant is in the process of appealing a denial of or re-filing for Social Security Disability benefits. (4) The claimant is 62 years and 6 months old. (5) The claimant has an End-Stage Renal Disease (ESRD) condition but does not yet qualify for Medicare based upon ESRD. CMS has noted that while they do not wish to review WCMSAs if the thresholds are not met, these thresholds reflect a CMS operational workload standard only. They do not constitute a substantive dollar or “safe harbor" threshold. Medicare beneficiaries must still consider Medicare’s interests in all WC cases and ensure that Medicare is secondary payer to workers’ compensation. 5/11/11 Memorandum, Charlotte Benson, Acting Director, Financial Services Group. See also, WCMSA Reference Guide on our Resources page.

The funds for the MSA must be placed into an interest bearing account with distributions made only for medical expenses related to the injury and that would otherwise be covered by Medicare. The account administrator must provide annual accounting records for all disbursements to Centers for Medicare and Medicaid Services (CMS). Once all funds have been exhausted, a final accounting audit is performed and the injured individual should be entitled to ongoing Medicare benefits, if necessary, related to the claim.

A Medicare Set Aside Account can be administered by the injured individual (self-administered) or by a Professional Administrator. The account administrator, whether the individual, custodian, or professional vendor, is charged with keeping accurate accounting records of all disbursements from the account. An annual statement of disbursements must be provided to CMS for review and appropriateness. If expenditures are deemed outside of Medicare’s coverage, Medicare may deny future claim-related benefits. CMS notes that MSAs must be administered by a competent administrator (the representative payee, a professional administrator, etc.) When an individual has a designated representative payee (for Social Security purposes), an appointed guardian/conservator, or has otherwise been declared incompetent by a court, the settling parties must provide this information in the MSA proposal submitted to CMS. 10/15/04 Memorandum, Q2

Matters falling under the Longshore and Harbor Workers’ Compensation Act and the Federal Coal Mine Health and Safety Act of 1969 are treated similarly to workers’ compensation claims. A MSA should be obtained in a Longshore or Coal Act claim if the CMS thresholds are met. Please see below for suggestions regarding a liability claim, as while not required, certainly liability MSAs are encouraged where appropriate.

CMS has yet to issue national comprehensive review thresholds in the liability arena of the nature that we have for workers’ compensation. Liability MSAs are currently a voluntary process as a method of showing compliance with the Medicare Secondary Payer Act. For several years now CMS has allowed the 10 Regional Offices of CMS to offer review of liability MSAs on a discretionary basis where Medicare eligibility is established (or a party will soon become eligible) and the settlement or dollar amount for future anticipated medical expenses is significant. Our office is available to discuss the options for liability MSA and potential submission in each jurisdiction. Whether submission is warranted, or a MSA is prepared solely for inclusion in the settlement documents, we can discuss the protection of Medicare’s interests in any significant liability claim. Jones Act claims are viewed as liability claims and should therefore be treated as such for MSA purposes.

Atlas Settlement Group works to provide MSA and Structured Settlement Annuity services from start to finish through your claim resolution process. It is our belief that early involvement is critical. This allows ample time to review the medical records to determine if the injured individual has a substandard life expectancy (rated age) and time to verify Medicare and/or Social Security Disability eligibility. If the individual meets the eligibility requirements, the completion of an MSA early in the life of the file assists with reserving and settlement negotiations. Further cost savings can be achieved through funding the MSA annual obligation with a Structured Settlement Annuity. Atlas Settlement Group’s Structured Settlement Annuity services are offered at no additional cost to the employer/insurer or the injured individual. Finally, Atlas Settlement Group will assist in preparation of settlement documents to ensure that Medicare’s interests are properly addressed and parties to the claim are properly protected.

The last two (2) years of treatment records for the injury, the full medical/indemnity/expense payment detail from the same timeframe, a detailed prescription history and a completed Medicare Set-Aside Evaluation Referral Form.

Please email msa@AtlasSettlements.com. A referral form is here. Or, please call our office at (404)926-4160 and we will be happy to send you a request for the necessary information and discuss your claim with you. We will confirm receipt of all materials and advise as to further handling. Medical records, prescription and payment histories may be emailed to msa@AtlasSettlements.com or mailed to: Atlas Settlement Group Medicare Compliance Services 3565 Piedmont Road NE Building 1, Suite 525 Atlanta, GA 30305

Atlas Settlement Group charges on a flat fee schedule to determine if an individual is Medicare and/or Social Security Disability eligible, to prepare a proposed Medicare Set Aside arrangement and to submit the MSA to CMS for approval. We will also work with you and your team to verify pre-settlement conditional payments, if requested. Any conditional payments made by Medicare on behalf of the injured party pre-settlement are subject to reimbursement at the time of settlement. Verification must be performed for any current Medicare beneficiary. Please see 42 CFR §411.24 for a detailed summary of Medicare’s reimbursement rights in this arena. Please contact our office at 404-926-4160 or 888-993-9111 for more detail.

Atlas Settlement Group knows that time is of the essence. Therefore we and our partners are committed to provide Medicare Set Aside reports within 10 business days of receipt of all required information. RUSH reports can be prepared where necessary. Please contact our office for availability and fees.

The approval process for a MSA may vary somewhat based on the type of plan and jurisdiction. Workers’ compensation plans may be approved in under 30 days, but review may run longer if the reviewing office is inundated, the review contractor seeks additional medical information from the parties, or CMS experiences an unusual delay. Liability plans are submitted directly to each Regional Office of CMS and therefore review is at the discretion of the individual office.