Practice Tip: Medicare Set Asides are a crucial step in settling a New York Workers’ Compensation Claim.  Obtaining formal approval from the Centers for Medicare and Medicaid Services (CMS) of a set aside is never required.  However, obtaining approval is obviously the best case since it allows for confirmation directly from Medicare/CMS that you have acted appropriately.

CMS review of an MSA is only available in cases where a claimant is currently Medicare eligible and the settlement is greater than $25,000 or the claimant has a reasonable expectation of Medicare enrollment withing 30 months and the settlement is greater than $250,000.  Applications for Social Security Disability, Appeals of Social Security Disability denials and an individual 62.5 years old are some examples of a reasonable expectation.

It is important to submit detailed evidence to CMS for MSA review and approval.  CMS wants definitive proof of ongoing treatment including payment histories and medical narratives.  Even in cases without ongoing treatment, updated information from a physician confirming a lack of regular treatment is typically required.  When to submit a Medicare Set-Aside can also be an important strategic decision.  Review of Medicare Set-Asides after approval has been given can be very difficult. 

CMS does have an amended review process that has been modified recently.  In order for amended review to even be considered, the initial approval must be between 12 and 72 months prior to the new submission.  Furthermore, there must be evidence that there has been a 10% or $10,000.00 change in the approved treatment amount, whichever is greater. 

It is also very important to make sure that final documentation is submitted to CMS after the WCB approves the settlement.  The signed Section 32 agreement and decision approving that agreement should be submitted to CMS.  Failure to complete that final step can jeopardize the protection the set aside approval provides.

If you have questions involving Medicare Set Asides or conditional payments, please do not hesitate to contact or any of the attorneys in our office.  If you would like a training session on this or any other area of the Workers’ Compensation Law, please do not hesitate to contact our firm.

This information is provided for general guidance only.  This information should not be used as a substitute for consultation with legal counsel.  Each case presents unique facts requiring individual analysis.