Is Your MSA Submission E-Sign Act Compliant?
Written By: Brendon De Souza
When settling parties voluntarily elect to submit a Workers’ Compensation Medicare Set-Aside (WCMSA) proposal to the Workers’ Compensation Review Contractor (WCRC) for review and approval, it is well-known that the submission package must attach an authorization form (e.g., Consent to Release Note or HIPAA) signed by the injured applicant. However, parties often overlook the legal sufficiency of the injured applicant’s signature when signed electronically.
Last year, the Centers for Medicare & Medicaid Services (CMS) updated the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide to instruct that all electronic signatures or initials on authorization forms must be “E-Sign Act compliant.” The WCMSA Reference Guide does not provide a description or examples of E-Sign Act compliant signatures or initials; however, our experience has shown that CMS will approve an electronic signature or initial with a “DocuSign” timestamp or other similar audit trail (e.g., accompanying IP address or machine ID).
Prior to this update, no such E-Sign Act requirement existed for submitted WCMSAs, and the injured applicant (or more unscrupulously, any individual) could freely provide an electronic signature and initials without any evidence that their digital markings were actually attributable to the injured applicant. Many parties—namely, the injured applicant and their attorney—remain unaware of this relatively new requirement. If the parties ignore the E-Sign Act requirement, the WCRC will issue a Development Letter and pause its review of the WCMSA proposal pending receipt of a corrected authorization form displaying a valid signature and/or initial by the injured applicant. If not corrected within twenty (20) days, the WCRC will issue a Closeout Letter due to untimeliness and lack of sufficiency.
Sanderson Firm Commentary
We often find that an injured applicant will electronically sign the Consent to Release or HIPAA authorization forms due to the inherent convenience and efficiency of electronic signatures. Prior to submitting a WCMSA proposal to the WCRC, we strongly recommend double-checking the sufficiency of the signed authorization forms as they are one of the most common sources of Development Letters. Alternatively, submitting parties may instead request the injured applicant to provide their handwritten signature and initials in order to bypass any E-Sign Act compliance concerns. Ultimately, it only takes a brief moment to verify the sufficiency of an injured applicant’s signed authorization form, and failure to comply will result in unnecessary complications, a several weeks’ WCMSA submission delay, and a dreaded WCRC Development Letter.
At Sanderson Firm, we offer thorough and accurate WCMSA submission services. Each WCMSA is reviewed by an attorney, and close attention is given to details often overlooked by the settling parties and other vendors. If you have any questions regarding WCMSA submissions or any of our other services, please contact us.
