Medicare Set-Asides

9. CMS has approved the MSA, now what?

Once you have obtained the Centers for Medicare and Medicaid Services (CMS) approval of a Medicare Set-aside (MSA), the approval is not final until the final settlement documents are submitted to CMS. In some cases approval is obtained after a case settles (not recommended). In these instances, the final settlement documents will probably have to be modified to reflect the approved amount of the MSA. If so, after the documents are modified, the new final settlement documents should be submitted to CMS.

If CMS approval was obtained before the underlying workers compensation case settled, then the MSA amount should be included in these documents. Once the settlement documents are finalized, they should be submitted to CMS to complete the MSA approval process.

Is there a time limit to submitting the final settlement documents?

CMS has not published any such time limit. Therefore, the final settlement documents can be submitted a year or two after CMS approves the MSA.

There appears to be no downside to getting an MSA approved before settlement because the parties will be able to negotiate with full knowledge of final and approved MSA amount. If negotiations take 12 to 16 months, that does not seem to matter, so long as the final settlement documents contain a provision (or provisions) that indicate an MSA is being funded with the approved amount.

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All of the content was prepared by Michael R. Merlino II, an attorney in Georgia who focuses on his practice primarily on MSAs. He prepares MSAs for many large self-insureds and insurance companies. If you have questions, he can be contacted at 770-374-3697 or mmerlino@gmail.com. He also has a website devoted to MSAs, which is updated frequently: www.wcmsainfo.com