What Are Medicare Set-Asides?
As the name suggests, an MSA is a finite sum that is set aside by the primary payer, typically in a claim settlement, based on an estimate of future health care costs for a Medicare beneficiary due to a work-related or general liability injury, illness or disease. Medicare has recommended Workers’ Compensation MSAs as a reasonable means of protecting Medicare’s interests for future medical expenses involving a Workers’ Comp claim for a Medicare beneficiary when a primary payer exists.
For example, a Medicare beneficiary who suffers a broken knee cap resulting from a fall may have been covered for the emergency room health care bills by his/her private insurance carrier, but funds may also be required for the cost of an expected knee replacement surgery sometime in the future based on a medical prognosis. These funds are referred to as a Medicare Set-Aside (MSA). MSAs can be very costly, as individuals 65 and older often require significantly more time to heal than do similar injuries incurred by younger individuals.
What Is The Goal of MSAs?
The goal of most MSAs today is to ensure funds are available to pay for projected future medical expenses required by a Medicare beneficiary as a result of a prior work-related injury. The recommended use of MSAs for Workers’ Compensation claims evolved from the 1980 Medicare Secondary Payer (MSP) Act, which established Medicare as a secondary payer when a primary payer exists. This was done to transfer some of the increasing financial burden from the explosive growth in federally funded health care expenditures to the private sector, such as self-insured employers, Workers’ Compensation insurance companies and liability insurance carriers.
What if MSA funds are insufficient?
If an injured party’s future medical needs related to the initial injury cost more than the set-aside amount, due to inflation or other secondary issues, and the primary carrier has taken the appropriate steps to protect Medicare’s interests, then Medicare will cover allowable expenditures in excess of the depleted MSA funds.
Flagship provides innovative solutions to protect the interests of Medicare while concurrently protecting the financial resources of our clients. Sometimes that can be done without the cost of developing a formal MSA, or taking the risk of a “counter higher” (Medicare counters the proposed MSA with higher projected costs). Flagship’s dedicated legal, medical, and claims professionals provide comprehensive assessments to limit potential expenditures and compliance risks.
What Are The Challenges of MSAs?
- Demonstrating that the primary payer insurer has taken appropriate steps to protect Medicare’s financial interests for future health care costs related to a personal injury covered by the primary payer.
- Identifying when an MSA is appropriate vs alternative lower cost options. Flagship utilizes a consultative approach in determining that answer.
- Maintaining a degree of control over the MSA funding to ensure funds are actually used for medical expenses and provide reversionary options.
- Providing better and more cost effective solutions.
What Are The Documentation Requirements For An MSA?
To create an MSA, Flagship needs the following basic information:
- A completed Medicare Set-Aside Referral Form.
- Past two years of medical records.
Where Are MSA Funds Kept?
MSA funds must be placed in an interest bearing account. Here are the guidelines:
- Funds are restricted for the exclusive use of the specific injury-related medical expenses that would otherwise be covered by Medicare.
- Medical treatments unrelated to the original injury, illness or disease, or those not normally covered by Medicare, cannot be paid from an MSA fund. For example, diabetic supplies or medications cannot be covered by an MSA fund created for a knee injury.
- An Account Administrator must be designated, and provide an annual accounting of all disbursements from the MSA fund.
When the MSA fund has been depleted, a final audit is performed to assess the appropriate disbursement of the funds to determine if the beneficiary is entitled to continuing Medicare benefits. If any medical expenditures are deemed to be outside of Medicare’s coverage for the subject injury, illness or disease, future claim-related medical care through Medicare may be denied.
Who Qualifies To Be The Designated Account Administrator?
An MSA account can be administered by:
- The injured party (self-administered), or
- An appointed administrator.
When the injured party has a designated representative, payee, appointed guardian/conservator or has been ruled incompetent by a court, the settling parties are required to provide this information in the MSA proposal.
What Types of Claims Are Recommended For An MSA?
Workers’ Compensation claims, and certain liability claims (on a discretionary basis) that involve personal injury. In some instances it is prudent to submit an MSA to Medicare for review and approval.
What Are The Benefits In Using Flagship To Create An MSA?
Combining years of experience in the Medicare market with consistent monitoring of Medicare’s ongoing changes, we specialize in implementing processes and procedures to keep you compliant.
As a privately held company, Flagship’s priority is to offer a consultative and flexible approach in creating a unique customized program for each of our clients. We provide several innovative solutions, depending on your needs. Our goal is to form a partnership to ensure compliance while providing the highest level of customer service.
- Proper formatting for CMS review when requested by client.
- Comprehensive analysis by experienced and credentialed medical, legal and claims professionals.
- Intensive legal review of claims to identify potential claim resolution issues or opportunities.
- Accurate future medical cost projections based on state fee schedules and CMS pricing guidelines.
- Rated Age services through “A” rated (or better) insurance carriers.
- Ten business days turn-around from receipt of complete medical records.
- Flagship Medicare experts available to answer questions and discuss options.
- Submittal process to Medicare.
- Louisiana Appellate Court Rules CMS Approval of MSA Was a Suspensive Condition that Suspended Obligation to Fund the MSA Until CMS Approval (5/21/2018) - Rafael Gonzalez, Esq. President, Flagship Services Group On May 2, 2018, the Third Circuit Court of Appeal of Louisiana published its opinion on Mary Ortega v. Cantu Services, Inc., concluding that the settlement of the workers compensation claim at hand was conditioned on CMS approval of a Medicare Set-Aside. Because the settlement agreement did not […]
- 6th Circuit Denies Beneficiary MSP Double Damages for Not Alleging Personal Financial Loss and Therefore Not Establishing Standing (5/15/2018) - On April 16, 2018, the United States Sixth Circuit Court of Appeals published its opinion on Gucwa and Marusza v. Lawley, Ager, Baker, Rubin and Accident Fund Insurance Company, finding that because Gucwa and Marusza did not allege personal financial loss in the original complaint or the two amended complaints, they have not established standing […]
- A Tale of Two Courts: Can MAPs Recoup MSP Double Damages from Medical Providers That Have Received Payment from Primary Payer? (4/23/2018) - Rafael Gonzalez, Esq. President, Flagship Services Group What a difference a couple of miles and a couple of days make. On March 2, 2018, the United States District Court for the Middle District of Florida, (Orlando), published its opinion on MSPA Claims 1, LLC v. Halifax Health, Inc., in which the court found that a […]