MSA Risk and Reward: Examining “Non-Threshold” Settlements

Here is a sneak peek into this week’s webinar topic. Register here if you haven’t already.

First, what is a “Threshold” Settlement?  

Let’s examine the guidance set forth by Medicare in its Workers’ Compensation Medicare Set-Aside Allocation (WCMSA) Reference Guide. Medicare outlines its workload review criteria in Section 8.1 and indicates it will review a proposed Workers’ Compensation Medicare Set-Aside (WCMSA) amount when the following workload review thresholds are met:

Safe Harbor?

Section 8.1 of the WCMSA Reference Guide also states that:

“These thresholds are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure Medicare pays secondary to WC in such cases.”

So if a case does not meet the submission criteria outlined by Medicare, then what?

• If the claimant is not a Medicare beneficiary AND does not have a “reasonable expectation,” then under current Medicare guidance it seems Medicare does not have an interest in the case. Use appropriate protective language in the settlement documents to evidence the parties’ consideration of the matter.
• There is otherwise no safe harbor where one is settling with a beneficiary for $25,000 or less or where one is settling with a claimant with a “reasonable expectation” for $250,000 or less.

We hope you can join ECS this Thursday to learn what to consider as you mull your options on “non-threshold” cases. We will discuss the costs and benefits associated with still getting a traditional MSA, using an Evidence-Based MSA, obtaining a zero allocation, contract drafting as a means of considering Medicare’s interest, and more.

To Regisiter for ECS’ upcoming January 21 webinar, click here.