CMS Publishes Workers’ Compensation Medicare Set-Aside (WCMSA) Statistics for Fiscal Years 2020-2022: The Current Trend on WCMSA Submissions & What You Need to Know
Yesterday, the Centers for Medicare & Medicaid Services (CMS) published an alert titled, “WORKERS' COMPENSATION MEDICARE SET-ASIDE (WCMSA) FISCAL YEAR STATISTICS: 2020-2022.” The alert is accessible here.
Sanderson Firm applauds CMS for publishing these statistics to the workers’ compensation industry. To our knowledge, this represents the first time that CMS has made WCMSA fiscal year statistics publicly available, and it is extremely insightful to workers’ compensation claims payers handling CMS-reviewable WCMSA files. Of interest are the following key takeaways on WCMSA submissions to CMS over the last 2 years with our commentary:
1. On average, WCMSAs submitted to CMS is currently translating to a $10,000 or approximately 14% counter higher WCMSA CMS approved allocation versus submitted WCMSA amount.
Sanderson Firm Commentary: Parties choosing to undergo CMS’ voluntary WCMSA process should take the potential for an approximately $10k/14% counter-higher into account when submitting a WCMSA to CMS. Reserves should account for this potential increase, and additionally, if parties choose to settle the claim prior to having CMS approval, the settlement language should clearly notate how any WCMSA counter-higher will be funded post-settlement.
2. Overall, submission of WCMSAs to CMS has decreased from 16,517 WCMSAs annually in 2020 to 13,752 in 2022. This represents a 17% decrease from 2020 to 2022.
Sanderson Firm Commentary: The decrease in submission of WCMSAs to CMS year over year is interesting, especially given the WCMSA Reference Guide update released earlier this year—specifically Section 4.3, which seemed to indicate some reluctance on CMS’ part to accept Non-Submitted Evidence Based Medicare Set-Asides (EBMSAs). Based upon these statistics, it appears that the workers’ compensation industry recognizes the legal permissiveness of non-submitted EBMSAs and are continuing to use non-submitted MSAs in settlements without interruption and notwithstanding the Section 4.3 WCMSA Reference Guide update.
3. CMS stands to have as much as potentially two (2) billion dollars in potential Medicare Secondary Payer (MSP) recovery / denial rights each year on settlements with Medicare claims/WCMSAs alone.
Sanderson Firm Commentary: Keep in mind, this statistic is based solely upon WCMSAs submitted to CMS. Medicare’s recovery / denial rights are far greater than the two (2) billion dollars advertised when considering the amount of non-submitted allocations funded each year. The WCMSA program is a key program of MSP compliance which seeks to avoid cost-shifting of future injury-related care to the Medicare program.
4. Prescription Drugs in WCMSA allocations account for approximately 25% of the WCMSA cost.
Sanderson Firm Commentary: For those that desire CMS approval of a WCMSA, it is important to understand how important it is to control prescription regimens and clinical intervention in advance of submitting a WCMSA to CMS. Understanding and controlling prescription costs early in the claim will greatly benefit the workers’ compensation claims payer when it comes time for a WCMSA.
In summary, we applaud CMS for releasing these statistics to the industry. Sanderson Firm works with clients that utilize both our standard WCMSA/CMS submission services as well as Indemnified Non-Submit EBMSA (iMSA) services. Please contact me if you have any questions on these statistics or your MSA program generally.
