Anders: Is CMS-Approved $0 MSA Still Possible?

Friday, August 5, 2022 | 0

A common question we receive is whether a CMS-approved $0 Medicare set-aside is still possible.  The answer is, yes — if it meets the criteria.

Dan Anders

There are three different ways a $0 MSA can be obtained, each with its own criteria and documentation requirements.

Denied claim $0 MSA

This is a $0 MSA based on a completely denied workers’ comp claim when no payments have been made for medical treatment or indemnity. In certain jurisdictions, such as California, some medical payments can have been made during a statutory investigating period. Payments for non-treatment purposes such as independent medical evaluations, case management and medical records copies do not impact the ability to obtain a $0 MSA approval.

This type of $0 MSA has significant documentation requirements:

1. Claim payment history

• A claim payment history printout, even if blank, representing payments since the inception of the claim. All payments must be itemized.
• Printout must be divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total listed. This printout needs to include the print or run date.
• If the claim payment history does not meet the above requirements, alternative documentation that meets CMS requirements will have to be identified.

2. Draft or final settlement documents and court orders or rulings or a statement that no such documents exist. The Centers for Medicare and Medicaid recently added a requirement that there must be a proposed or agreed-to settlement. Importantly, while CMS requires a proposed settlement, it will reject the $0 MSA if the settlement is finalized, for example with court or commission approval, before CMS’ review and approval of the $0 MSA.

3. First report of injury or a statement that no such document exists.

4. Financial detail and denial letter: At the time of submission, Tower will draft a letter for the client to sign that confirms the denial of the claim and any other necessary explanations, such as why no first report of injury is available.

5. Medical records: As with a regular MSA, medical records for the past two years must be provided with the submission.

6. CMS consent to release form executed by the claimant.

Accepted claim $0 MSA 

This is a $0 MSA based on medical documentation supporting no further need for injury-related treatment. In the Workers’ Compensation Medicare Set-Aside Reference Guide, CMS provides as follows:

The individual’s treating physicians conclude (in writing) that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the WC injury.

In practice, CMS accepts treating physician statements that say the injury-related treatment has resolved or returned to baseline (when there was a preexisting condition) and that no further injury-related treatment will be necessary as sufficient to support the $0 MSA.

Keep in mind that CMS will not accept the physician’s statement unless it is consistent with the treatment records/notes. For example, if the physician states the injury-related has resolved, but treatment notes document ongoing pain to the relevant body part, CMS is unlikely to approve a $0 MSA. Also, if the injured worker will require a revision or replacement to a body part, e.g., a knee replacement, a $0 MSA will not be approved.

In addition to the physician statement, a claim payment history, medical treatment records and an executed consent to release are required.

Judicial decision $0 MSA

CMS will accept a judicial decision after a hearing on the merits of the case as a basis for a $0 MSA. This can be on a completely denied claim where the judge upholds the denial of the claim or an accepted claim where the judge finds future medical treatment, if any, is unrelated to the work injury. The key here is the decision is “on the merits.” If it in any way looks like an agreement between the parties and the judge just stamped their approval, CMS will not accept it.

In addition to the physician statement, a claim payment history, medical treatment records and an executed consent to release are required.

While there are strict documentation requirements, these $0 MSA approvals remain available for workers’ compensation cases meeting the applicable criteria.

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