CMS and the Submit Vs. Non-Submit Debate

Daniel M. Anders, Esq.
Chief Compliance Officer
Tower MSA Partners

This year started with a bang for the Medicare Set-Aside community. In January, the Centers for Medicare and Medicaid Services added a section to its Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide on non-CMS approved Medicare Set-Asides that said the agency considered “evidence-based” or “non-submit” MSAs “a potential attempt to shift financial burden.”

This section stirred the embers of the submit/non-submit MSA debate. Although CMS clarified its stance in a webinar and a later guide update, it reinforced its commitment to protecting Medicare’s financial interests.

CMS’s updates raised the question of whether Medicare ever denies payment to Medicare beneficiaries with non-submit MSAs. The answer is yes. Not only does CMS does deny payment in these cases, but injured workers risk having to exhaust their entire net settlements before Medicare will pay for injury treatment.

Here is a direct quote from a January 13, 2022, letter CMS sent to a claimant Medicare beneficiary: “Because you did not seek prior review and approval by CMS of the amount set aside in your settlement for your future medical care, Medicare will not pay for the treatment of your work-related condition until you have demonstrated the appropriate exhaustion of your “net” settlement proceeds.”

When CMS approves an MSA, the injured worker Medicare beneficiary only needs to properly exhaust the medical (MSA) portion of their settlement before Medicare will pay for additional injury-related expenses. Net settlement refers to the amount of the whole settlement—future medical costs plus any compensation for lost time, permanency, medical bills, liens, and lost wages or future wage loss minus procurement costs. Procurement costs are attorney fees and other expenses related to obtaining the settlement.

Through Section 111 reporting, CMS knows when settlements occur and the entire amount of the settlement. However, if an MSA is not submitted for CMS approval, the agency does not “recognize” it, and the Medicare beneficiary may have to use funds they did not expect to use for injury related care.

Of course, denials are not an issue if Medicare does not receive a bill for injury related treatment.

CMS launched 2022 with a significant effort to assert what it believes is its right to claim the entire settlement amount, minus procurement costs, as available to pay for future injury-related medical when the settlement does not include a CMS-approved MSA. Parties to settlements where the CMS WCMSA review thresholds are met and the MSA is not submitted should educate injured workers about the risks that non-submit MSAs pose. CMS is serious about protecting Medicare from costs it should not incur.

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Daniel M. Anders, Esq.
Chief Compliance Officer
Tower MSA Partners

Daniel M. Anders, Esq., MSCC, CMSP, is an expert in Medicare Secondary Payer (MSP) compliance and Medicare Set-Aside (MSA) preparation. As Chief Compliance Officer for Tower MSA Partners, Anders oversees all aspects of regulatory compliance associated with the MSP status and local, state, and federal laws. His responsibilities include ensuring the integrity and quality of Tower’s services and products, including its MSA program.

With 20 years of experience working with employers, insurers, third-party administrators, attorneys and claimants, Anders provides education and consultation to Tower’s clients on all aspects of MSP compliance. He presents at webinars and industry conferences, including WCI and the National Workers’ Compensation & Disability Conference & Expo. A respected subject matter expert, Anders writes articles, is frequently interviewed for insurance and workers’ compensation publications, and regularly contributes to Tower’s MSP Compliance Blog.

Anders joined Tower in 2016. He previously served as Senior Vice President of MSP Compliance for ExamWorks Clinical Solutions and gained extensive litigation experience in his previous position with the Chicago law firm of Wiedner & McAuliffe.

Anders is a member of the Illinois State Bar Association and the immediate past president of the National Medicare Secondary Payer Network (MSPN), formerly the National Alliance of Medicare Set-Aside Professionals (NAMSAP). He has been involved in the organization for over a decade, having served on MSPN’s executive committee for several years and co-chairing its Policy & Legislative Committee.

Anders earned his Juris Doctor degree from Chicago-Kent College of Law and his bachelor’s degree from Loyola University Chicago. He holds the Medicare Set-Aside Consultant and Certified Medicare Secondary Payer certifications and lives in the Chicago area.