Msas: to Submit or Not Submit?

• Publication year: 2022
• Author: JASON WELLS, ESQ.

MSAs: To Submit or Not Submit?

JASON WELLS, ESQ.

EUREKA, CALIFORNIA

Under the Medicare Secondary Payer (MSP) laws, the parties in a workers' compensation claim have responsibility to protect Medicare's interests when resolving future medical expenses.

The Centers for Medicare and Medicaid Services (CMS) recommends that parties in workers' compensation claims prepare a Medicare Set Aside (MSA) when settling future medical care in a Compromise and Release. An MSA is a cost analysis of future medical treatment over the life expectancy of an injured worker.

The procedure for settling a claim by Compromise and Release in line with CMS's recommendations is as follows:

1. Prepare the MSA.
2. Review the MSA for accuracy.
3. Submit the MSA to CMS for review and response.

MEDICARE SET-ASIDE (MSA) PREPARATION

Generally, the claims administrator contracts with a third party company to prepare the MSA. In high-value claims, it might be appropriate for the applicant's attorney to contract with an outside third party to review the accuracy of the MSA the claims administrator has obtained. The injured worker, almost always through their attorney, can also pay a third party company to prepare their own MSA. In the latter scenario, there is likely to be a dispute between the parties as to the accuracy of either MSA if they conflict.

MSA REVIEW BY PARTIES

Both parties, including the claims administrator or their attorney and the applicant's attorney, should perform a detailed review of the MSA. The applicant's attorney should scrutinize the MSA for accurate life expectancy, medical estimates and coverage on accepted body parts.

Life expectancy that third party companies estimate can conflict with the life expectancy estimate by the Social Security Administration (SSA) for an injured worker. Life expectancy in the MSA should be consistent with the expected life estimate from the SSA. If it is not, CMS could deem the MSA to be inaccurate.

Medical estimates in MSAs are commonly incorrect. An often-undervalued type of medical treatment is the number of physician visits an injured worker will require. If an injured worker has been averaging six to eight treatment visits to a pain management physician a year and the MSA indicates only four visits per year, more analysis is needed as to the accuracy of the MSA's estimate, which might be underestimating the injured worker's actual use of medical benefits.

"It may make sense to send the PQME or AME report to the treating physician for their review and

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