This MSPN Corporate Partner featured article is authored by
Monica Williams, RN, CCM, CRRN, LNC, MSCC, CMSP with Innovative Claims Strategies

Submit vs. Non-Submit

CMS recommends the submission of Workers Compensation Medicare Set Aside (WCMSA). The recommended requirement is to protect Medicare’s interest for future medical expenses related to injuries, illness, or disease. There are no statutory or regulatory provisions that require submission, thus it is a voluntary process. CMS has established WCMSA review thresholds policies and procedures that must be meet prior to submission. MSA providers are tasked with assisting the parties involved with the WCMSA Guidelines for legal submission. There are some states where submission is not necessary because ongoing responsibility for medicals remain open. On the other hand, there are states that require the state worker’s compensation board approval and submission to Medicare for approval.  Otherwise, the submission of a file is driven by the self-insured employer, carrier, or legal team. Some employer/carrier TPAs choose not to submit cases and instead will prepare the MSA to protect Medicare’s interest and move forward with the settlement.  The requirements for additional documents to support medical expenses on submitted files may slow and/or eliminate the settlement proceedings.  Especially in the older files where documents are no longer available and settlement is pending further development or involvement with legal team to address retrieval of medical records.

Amy Bilton, JD, MSCC, CMSP-F, a member of the MSPN Board of Directors, Past President and Worker’s Compensation and Trial attorney with Nylan Bambrick Kinzie & Lowry, provided the following legal analysis:

“From a legal perspective, CMS’ stated policy that non-submit MSAs are not acknowledged and will not serve as a cap for future medicals or “future conditional payments”, can be scary to clients. The Claimant/Medicare beneficiary in a workers’ compensation claim, for example, raises concerns about Medicare denying post-settlement medical bills up to the total amount of the settlement.  The employer self-insured employer or insurance carrier raises concerns about Medicare refusing to acknowledge the settlement and attempting to collect conditional payments, or worse, after the settlement. Settling parties generally want complete closure. Contingent liabilities and unknowns are difficult for clients to accept. 

With that noted, Medicare’s WCMSA policies often over-allocate for future medical expenses, meaning employers and carriers often overpay. Claimants may not be comfortable administering their WCMSA accounts.  Large WCMSAs often make it impossible to settle cases. 

From a legal perspective, a voluntary WCMSA submission program is preferred to one requiring submission. Voluntary submission programs allow parties act in ways that suit their individual clients’ risk tolerances, reflect true case facts, and eliminate unknowns and risk associated with trial. Court cases would grind to a halt if CMS submission became required and universal.  If CMS began to track and acknowledge good non-submission allocations and programs, however, the program could demonstrate a larger cost savings and track and punish “bad actors.”  I think this would be the best future for the MSP and for the economic viability of the Medicare program in general.”

Melissa Wright, Director of Marketing with Ametros, an industry leader in professional funds administration, provided an opinion from a settlement perspective:

“The industry is seeing more settling parties consider non-submission of MSAs that reach the review thresholds. While the practice has been in existence for some time, this trend is becoming increasingly popular.

Many organizations are building programs to implement non-submission MSAs with the strong recommendation or requirement that the injured party have their MSA funds professionally administered after settlement.

A professional administration company helps maximize the MSA through discounts achieved through medical networks for pharmacy, DME, and providers.  These savings lessen the chance of the non-submitted MSA ever running out of money and there being any potential for Medicare to get involved.  The administrator also handles all the required reporting to CMS for the MSA so that Medicare is informed of the use of the settlement funds; perhaps most importantly, the administrator provides an ongoing resource after the case has settled to assist the injured party with any issues that may arise in a complicated healthcare maze that also involves CMS.

Professional administration is an important component of settlement strategy because it provides an extra layer of protection for all parties to the settlement, especially if a non-submit strategy is pursued.”

In conclusion, CMS prefers professional administration of all MSA. Protecting all parties from future liabilities related to the exhaustion of medical benefits is vital. Working with allocators, attorneys, and settlement brokers helps to secure that Medicare’s interest will be protected regardless of submission or non-submission program.

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