CMS Workers’ Compensation Medicare Set-Aside (WCMSA) Statistics: 2023 Update and Civil Money Penalty Webinar Announcement

Written by: Kristina Bonanno, Esq.

On December 4, 2023, the Centers for Medicare & Medicaid Services (CMS) published an alert titled, “WORKERS' COMPENSATION MEDICARE SET-ASIDE (WCMSA) FISCAL YEAR STATISTICS: 2020-2023.” The alert is accessible here.

This is the second year that CMS has made WCMSA fiscal year statistics publicly available, and we are pleased to see CMS continuing to provide some insight into their handling of submitted WCMSA files.

Here are the top takeaways from this year’s updated report:

1.      Submission of WCMSAs to CMS increased from 13,752 in 2022 to 15,743 in 2023. This represents almost a 14.5% increase from 2022 to 2023.

Sanderson Firm Commentary:

The increase for FY 2023 is notable as this is the highest number of submitted WCMSAs since FY 2020. While no reason for the increase was given, CMS did release an updated WCMSA Reference Guide in May 2023 that removed the maximum time limit for eligibility for the amended review process. With the 72-month cap removed, many workers’ compensation payers may have opted to submit amended reviews on older claims which could account for the increase in submissions. Additionally, as we move further out from the COVID-19 pandemic, claim settlements are on the rise which could also account for more potential WCMSA submissions as well.

2.      On average, CMS is returning approved allocations that are $15,565 more, or approximately 21.95% higher, than the submitted WCMSA amount.

Sanderson Firm Commentary:

This is a sizable increase from the approximate $10,000 / 14% counter higher statistics for WCMSAs submitted in FY 2022. Given the risk of a large counter-higher determination, it will be interesting to see if the number of WCMSAs submitted to CMS will continue to rise or if settling parties will contemplate other options such as non-submit allocations that protect Medicare’s interest without having to risk a significant counter higher as a result of CMS’ voluntary WCMSA process.

3.      Prescription medications continue to account for almost 25% of the WCMSA cost.

Sanderson Firm Commentary:

Since CMS requires medications to be allocated for the claimant’s full life expectancy without allowing for tapering, prescription medications can account for a substantial portion of a WCMSA. Workers’ compensation payers should be mindful of the costs of medications, take steps to confirm the medication regimen for the claim, and try to mitigate costs when possible through the use of generic and over-the-counter versions of medication before any possible submission of a WCMSA to CMS.

We appreciate CMS continuing to make these WCMSA statistics available and look forward to continued transparency regarding CMS’ WCMSA review process.

CMS also announced yesterday that it will host an informational webinar regarding Section 111 reporting civil money penalties for Non-Group Health Plans (NGHPs) on January 18, 2024. We encourage NGHPs to attend the webinar. Sanderson Firm will be attending the webinar and will provide additional commentary and analysis after the CMS webinar.

If you have questions regarding these statistics, WCMSAs or if you would like to engage Sanderson Firm’s services, please contact us.