CMS WCMSA Reference Guide and Self-Administration Toolkit Updates

Written by: Kristina Bonanno, Esq.

On Thursday, August 1, 2024, the Centers for Medicare & Medicaid Services (CMS) published updates to the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide and Self-Administration Toolkit. The updates to both documents are similar and add language to guide parties settling with an MSA, that just as with traditional Medicare (Medicare Parts A & B), in cases where a Medicare Set-Aside (MSA) has been established the MSA funds should be exhausted before a Medicare Advantage Plan (Medicare Part C) or prescription plan (Medicare Part D) pays for medical expenses for a covered work injury. In other words, the Medicare beneficiary must utilize their MSA funds for all work-related injuries before billing any Medicare program, whether it be Part A, B, C, or D.

 The updated language is located in Section 4.1.3 of the WCMSA Reference Guide and in Section 4 of the Self-Administration Toolkit.

Of note, the updated text in the WCMSA Reference Guide confirms the following:

“CMS notifies Part C and D plan sponsors that a WCMSA has been approved and instructs plan sponsors to conduct Medicare Secondary Payer (MSP) investigations. However, CMS does not relay WCMSA details to plan sponsors. Instead, CMS instructs plan sponsors to seek WCMSA coverage details from the WCMSA administrator as part of the plan sponsor’s investigation. When possible, Part C and D plan sponsors are required to avoid paying for expenses that should be covered by a WCMSA. When a settlement is reached, the settlement details dictate who is responsible for ensuring Medicare (Parts A, B, C, and/or D) is repaid for any conditional payments associated with the WC illness or injury. If the settlement does not identify funds for past debt, CMS considers those debts up to the date of settlement to belong to the WC insurer. Recovery may be sought from any party receiving inappropriate payment on behalf of the beneficiary. The administrator must provide details concerning treatments and medications used exclusively to treat a related illness or injury to the plan sponsor so the sponsor may avoid making primary payment in the future.”

It is unclear why CMS only notifies private Medicare plans about the existence of an MSA rather than providing the amount or any other specific details about the MSA. This may be due to a lack of knowledge of WCMSA details on CMS’ part. This may also be due to the fact that currently CMS may not have an efficient method of feeding all of the MSA information to private Medicare plans, but this may change as new reporting requirements come into effect in April 4, 2025 where Responsible Reporting Entities (RREs) will be required to provide WCMSA details as part of Section 111 reporting of the Total Payment Obligation to Claimant (TPOC). Presumably, CMS would then be able to efficiently feed all of this new Section 111 TPOC MSA data to private Medicare plans rather than simply notifying such plans of the existence of the workers’ compensation MSA alone.

This new update from CMS also reinforces the importance of making sure the parties have clearly outlined in their settlement documents who will be responsible for reimbursing conditional payment liens made by Medicare or a Part C or Part D plan, otherwise CMS will consider those debts to “belong to the [workers’ compensation] insurer.

There was also an update to Section 8 of the Self-Administration Toolkit reminding claimants that they are required to provide an annual attestation stating that the claimant has used the funds in the MSA account correctly. The annual attestation is required regardless of whether the claimant is enrolled in traditional Medicare or a Medicare advantage or prescription drug plan.

If you have questions regarding the Reference Guide and Self-Administration Toolkit Updates or if you would like to engage Sanderson Firm for our MSA services, please contact us.