Workers' Comp., Compromise & Release, is it mandatory that the MSA must be approved by the Center for Medicare Services?

Asked about 2 years ago - Burbank, CA

In a Workers' Comp., settlement Compromise and Release, is it mandatory that the Medicare Set Aside must be approved by the Center for Medicare Services before it is approved by a judge?

Attorney answers (4)

  1. George Ellis Corson IV

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    Answered . No. The CMS approval means that everyone is safe, but it is actually necessary only to "consider the interests of Medicare" in most circumstances. If the MSA apportions 50K to future treatment, and Medicare later decides that 62K is more appropriate, someone has to fund the difference. As long as either Applicant or Insurance Company is willing to fund any discrepancy, CMS approval is actually unnecessary.

    The bigger issue is who will cover any difference if approval is not received before settlement is completed. . The Insurance Company is typically in no great rush, and would like the liability coffin nailed tight. The Applicant wants his money, and his Attorney does not want to be sued later if the Medicare withholds treatment because the MSA was a little light.

    The biggest issue is that the MSA review process does not really have an Appeal avenue. If CMS disagrees, the settlement essentially has to be changed or Applicant needs to accept the potential risk for any difference.

    I see it as less of a problem than many others, because no matter who does the calculations, the MSA is rarely more than an estimate. If a true good-faith estimate is made, I do not believe that a proper MSA ordinarily even needs to be submitted.

    Your best path is to follow the advice of your Attorney, whom I am not. If you are an Attorney, you need to read up on the issue instead of delegating your professional responsibility.

    Attorneys are very competitive. Choose the Best Answer so we know who helped you the most.
  2. Steven Mortimer

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    Answered . Here is the short answer. While it is not mandatory to get CMS approval prior to approving a settlement, CMS's authority to enforce its interpretation of what would be required for a sets aside is absolute and independent from any other source.

    Therefore, from a practical standpoint, it is the norm to have to wait for CMS approval. The good news is that a properly prepared proposal is almost always accepted by CMS.

    No attorney client relationship is created by the above response. Nothing in the responses should be construed as... more
  3. Russell Greer Keener

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    Answered . That is the normal sequence in Georgia. My experience is that the insurance company will not normally agree to enter into a final settlement agreement until they have the MSA approved by CMS. But not because the state judge requires it. MSA is a federal law obligation that causes the insurance company to get that taken care of prior to sending the settlement documents to the judge for approval. Good luck my friend!

  4. Charles Welling O'Donnell

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    Answered . While I agree with Steven's answer below, I would also point out that there are circumstances where, depending on the size of the settlement and you current status of receiving medicare now (or reasonably expect to receive medicare within 30 months), then CMS approval of the MSA would be required to obtain the safe haven protection contemplated by using an MSA in the first place. It is far safer to go through that process now, then risk forfeiting your right to Medicare coverage later. The only thing for sure, aside from death and taxes, is that medical costs continue to move upwards and, with each such increase, the value of having the Medicare safety net for later increases. Best- Charlie

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