Exploring CMS's Upcoming WCMSA Reporting Requirements in Workers’ Compensation Settlements

By: Brendon DeSouza, Esq.,  Heather Sanderson, Esq.

Today, the Centers for Medicare & Medicaid Services (CMS) hosted a webinar regarding the “potential” future expansion of Section 111 Reporting requirements to include Workers’ Compensation Medicare Set-Aside (WCMSA) information for Medicare beneficiary settlements. CMS representatives described the presentation as an “early involvement webinar” for purposes of allowing Medicare Secondary Payer stakeholders to provide CMS with initial feedback regarding potential new data fields which would provide information regarding WCMSAs. CMS confirmed that this potential future requirement would only impact workers’ compensation and not general liability or no-fault claims. Further, referencing this reporting change as a “potential” future change seemed to indicate that it is not conclusive as to whether CMS will implement this WCMSA reporting requirement in the future for certain.

Here are a few of the major takeaways from today’s webinar:

1.      CMS is looking to WCMSA information reporting on all workers’ compensation settlements involving Medicare beneficiaries, regardless of whether the Medicare Set-Aside was voluntarily submitted and reviewed by CMS or was a non-submit / evidence-based Medicare Set-Aside.

·        Given that Section 111 reporting only applies to Medicare beneficiaries, the reporting of WCMSA information will not apply to individuals who meet “reasonable expectation” status as defined under the WCMSA Reference Guide.

2.      The WCMSA information collected will specifically include the WCMSA amount, the WCMSA period (e.g., life expectancy of the beneficiary for which the WCMSA covers), lump sum/annuity indicator, initial deposit amount (if funded via an annuity), annual deposit amount (if funded via an annuity), Case Control Number (if the WCMSA was voluntarily submitted for review to CMS), and the professional administrator EIN (if the WCMSA will be professionally administered).

·        This WCMSA information will become required fields and made part of Total Payment Obligation to the Claimant (TPOC) reporting.

3.      CMS anticipates an updated file layout/error codes for proper reporting of the above-described WCMSA information fields to become available in early 2024. Testing is anticipated to become available in the Fall of 2024 with formal implementation to begin in January 2025.

·        These are proposed timeframes and remain subject to change. CMS noted that the industry should not hold CMS to these time frames.

4.      Submission of WCMSAs remains voluntary, and the upcoming WCMSA reporting requirement does not represent a policy shift with respect to the validity of non-submit / evidence-based Medicare Set-Asides. CMS referenced the WCMSA submission process as voluntary several times throughout the webinar.

5.      CMS anticipates sending notification of the reported WCMSA information to the Medicare beneficiary indicating the process for appropriate attestation and exhaustion.

·        Beneficiaries may be surprised by such correspondence, and primary payers/claims adjusters may receive telephone calls from beneficiaries with questions regarding the significance of the reported data.

Sanderson Firm Commentary

The upcoming potential requirement to report WCMSA information for workers’ compensation Medicare beneficiary settlements appears to have been prompted by coordination of benefit issues. CMS representatives commented that CMS is not always provided with WCMSA information/finalized settlement documents post-settlement even when a WCMSA is approved by CMS.

As such, the upcoming potential WCMSA reporting requirement will provide CMS with another source to reference basic WCMSA information and coordinate benefits/pay secondary where an MSA is available to pay. Of note, CMS has not determined whether retroactive reporting of WCMSA information (e.g., reporting WCMSA information for closed files / older settlements) will be required.

It is also unclear how this potential upcoming WCMSA reporting will interact with civil money penalties (CMPs) for Responsible Reporting Entities (RREs) that fail to timely report TPOC and Ongoing Responsibility for Medicals (ORM).

Sanderson Firm will continue to monitor updates from CMS as they become available. Please note that CMS will release its PowerPoint presentation (no audio included) in approximately two weeks on its website. If you would like to address specific questions, comments, or concerns directly to CMS regarding this update, you may contact CMS at S111WCMSA@cms.hhs.gov.

If you have questions regarding CMS’ webinar, or if you would like to engage Sanderson Firm for our WCMSA, Section 111 reporting solution and/or auditing services, please contact us.