Anders: 400-Week Statutory Cap on Care Limits MSAs

Thursday, January 9, 2020 | 0

Obtaining Centers for Medicare and Medicaid recognition of state statutory limitations on medical care in order to limit the Medicare set-aside allocation has always proven difficult, but not impossible.

Dan Anders

As those who have Georgia workers' compensation claims know, since July 1, 2013, the state limits medical care in non-catastrophic comp claims to 400 weeks from the date of injury. While this is old news, payers may not recognize the statute’s potential impact on MSAs.

If certain conditions are met, CMS will agree to limit the MSA based upon the 400-week limitation.  

The CMS WCMSA Reference Guide says the following in regard to limitations such as Georgia’s:

Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate.

Accordingly, parties who wish to have the MSA limited based upon this statutory provision must draft and obtain the judge’s approval on an order that:

• Identifies the specific injuries arising from the work accident.
• States the claimant’s injuries arising from the accident have not been designated as catastrophic under the statute.
• Confirms the claimant is entitled to no medical treatment beyond the 400 weeks from the date of accident.
• Confirms the claim does not meet any of the exceptions found in the statute, i.e., use of a spinal cord stimulator.

If such an order is submitted with the MSA, CMS will agree to limit the allocation to the approximate balance of years remaining on the 400 weeks.

Case study

A Georgia claim was referred to Tower for MSA preparation. Both the claimant’s actual and rated age were 66, which normally calls for an MSA allocated over 19 years.  The MSA allocated over 19 years would have been $69,286. However, the MSA approved by CMS and allocated over six years was $24,161.

This result was obtained by sending the MSA submission along with a court order from the Georgia Workers’ Compensation Board that confirmed the 400-week limitation applied in this case.

Practical implications

Obtaining these court orders requires cooperation among attorneys for employer/insurer and claimant as well as the judge. When such cooperation is possible, as demonstrated by the case study, the MSA can be allocated pursuant to state statute.

CMS approval of the limited MSA then gives claimant assurance that if the funds prove insufficient — which may be the case, given it is not funded over life expectancy — then Medicare will pay for future injury-related medical care. 

Dan Anders is chief compliance officer at Tower MSA Partners LLC. This entry is republished with permission from the Tower MSP Compliance Blog.