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Workers Compensation , MSA

Binding CMS to its WCMSA Determination

February 11, 2021

Rasa Fumagalli, JD, MSCC, CMSP-F

Securing CMS review of a Workers’ Compensation Medicare Set-Aside (WCMSA) proposal can, at times, be cumbersome.  Once the CMS WCMSA determination letter is received, parties may often just close their files after the settlement funds are disbursed. This brief article will address the frequently overlooked CMS determination finalization process.

Parties that seek CMS review of a WCMSA should follow the guidelines that are set forth in CMS’ WCMSA Reference Guide (Guide). The most current version of the Guide, Version 3.2 was released on October 5, 2020, and outlines the process used by CMS in reviewing WCMSA proposals.

According to the Guide, the main benefit of seeking CMS review of a WCMSA proposal is the certainty that CMS will become the primary payer for injury-related, Medicare-covered services upon proper exhaustion of a CMS-determined WCMSA.  This benefit, however, requires that the parties properly finalize the CMS determination. Section 15.3 of the Guide addresses this requirement in a “note,” which states: “the case will not be considered final until CMS receives the final settlement with the appropriate WCMSA amount.”

CMS determination letters also remind parties of this requirement. The first two pages of a CMS determination letter include the following statement:

“Approval of this WCMSA amount is not effective until the Centers for Medicare & Medicaid Services (CMS) receive a copy of the final executed workers’ compensation settlement agreement, which must include this approved WCMSA amount. Please include the CMS Case Control Number listed at the top of this letter in any correspondence. Submit your settlement agreement via the Portal if your original submission was via the Portal. If you originally submitted outside of the Portal, submit the settlement agreement to the following address:

WCMSA Proposal/Final Settlement
P. O. Box 138899
Oklahoma City, OK 73113-8899”

This last step is an important one since it gives CMS notice that the CMS determined WCMSA has been properly funded. This funding is then reflected in Medicare’s Common Working File for the beneficiary and serves to limit the amount of the settlement that may be considered for future medicals.  Failure to properly finalize the CMS determination may result in the unintended consequence of Medicare considering the entire settlement as a future medical allocation, thereby defeating the benefit of the CMS review.  Since there is often a delay between the issuance of the CMS determination and the actual settlement that funds the CMS determination, it is imperative that parties not overlook the finalization requirement.

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