MSAs: A second bite at the apple


CMS now permits some old MSAs to be re-approved

Before this week, the Centers for Medicare & Medicaid Services (CMS) had a simple philosophy: Parties get one bite at the apple when it comes to CMS approval. However, on Monday, CMS released an updated Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) users’ guide that outlined a new process to have older Medicare set-asides (MSAs) reviewed and approved for a second time. This can be industry-changing, as CMS, for the first time, is allowing us a second bite at the apple. CMS calls this new process an “Amended Review.”

There are a few conditions to the Amended Review (from section 12.4.3 of the guide)

  1. The MSA must have been submitted between one and four years from the current date
  2. Cannot have previously requested an Amended Review
  3. The change in the MSA amount must be 10% of the approved MSA amount or $10,000 (whichever is greater)

Despite these limitations, this new process will allow us to submit a previously approved MSA for re-review where before this was not a possibility.

Practical impact

Parties can now go back into their inventory of recently (1 to 4 years) approved MSAs and determine if the approval was too high to facilitate settlement. If it was, current medical and prescription drug records can be reviewed to determine if the MSA can be significantly reduced. If it can, the new Amended Review process may be beneficial.

Pro tip

We only get one chance to reduce the MSA, so make sure all involved parties are relatively close to settlement at the time of the Amended Review. This will allow the parties to act quickly once the Amended MSA is approved.

Michael R. Merlino II, ESQ, SVP, Medicare Compliance & Structured Settlements

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