Bi-Partisan Legislation for Workers Compensation Medicare Set Asides (WCMSAs) Introduced to Senate J

Beginning 2014, Senators Portman (R-OH) and Nelson (D-FL) introduced a Bi-partisan Senate bill “[t]o amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers’ compensation settlement agreements and qualified Medicare Set Aside provisions.” The bill was sent to the Finance Committee where it died a quiet death. Earlier this week, however, the same Senators once again introduced a new and revised version of the 2014 bill which is filed S.3079

The S. 3079 Bill primarily seeks to:
  1. Establish the adequacy and application of state provisions and state fee schedules for Workers Compensation Medicare Set-Asides (WCMSAs) consistent with the requirements of state rules and guidelines; and

  2. Establish a 60-day turnaround time for CMS review and approval with the ability to access a formal appeal process for WCMSAs, not previously available.

  3. Provide the option of a “qualified MSA” at the time of and the proposed MSA funds are paid directly to CMS within 30 days of settlement.

The Senate bill maintains the voluntary option of CMS submission of MSAs but proposes a formal appeal process for those cases where a party is dissatisfied with the CMS determination. Currently, there is no formal appeal process if a MSA is submitted for approval. The proposed process as outlined would require the following steps: (1) Reconsideration of the Determination (2) A Hearing before an Administrative Law Judge and (3) Judicial Review. This is closely related to the denial of a claim for Social Security Disability or Medicare health benefits.

The proposed legislation also allows for an “optional direct payment of [a] Medicare Set-Aside amount” within 30 days of settlement. The bill reads:
“[e]ffective 30 days after the date of enactment of this subsection, with respect to a claim for which a workers’ compensation settlement agreement is or has been established, a claimant or workers’ compensation payer who is party to the agreement may elect, but is not required, to transfer to the Secretary a direct payment of the Medicare set-aside amount.” In this scenario, either the payer or beneficiary can place the MSA funds with CMS directly. The bill also states there is nothing that prohibits an individual from electing the use of a professional administrator or self-administration of the MSA funds.

The legislation has been referred to the Committee on Finance. However, it does not address the subjective nature of the CMS MSA review process, it does not address the excessive and inaccurate Medicare Part D prescription drug methodology or the use of average wholesale pricing for MSAs. Eligible claims may establish a ‘qualified MSA” and the beneficiary or payer may submit the MSA payment directly to Medicare within 30 days of settlement, without submitting the MSA to CMS for review and approval. The opportunity for payers to avoid the administrative burden of submitting an MSA to CMS for review and approval will create additional administrative and financial burdens for CMS.

If this bill is passed, Care Bridge International’s MSP Compliance program is positioned perfectly to meet your needs! Generate a WCMSA in minutes instead of days or weeks, close claims 6-8 months faster!

Bennett L. Pugh, JD Chief Executive Officer Fidelity Fiduciary Company, LLC P.O. Box 43613 Birmingham, AL 35243-0613 Mobile: 205-901-1116

Deborah Watkins Chief Executive Officer Care Bridge International, Inc. MSP Compliance Bridge, LLC 9040 Town Center Parkway Lakewood Ranch, FL 34202 Toll-Free: 888-434-9326

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