Medicare Set-Asides (“MSAs”) don’t exist under the law. CMS insists MSAs are a voluntary process. But – are they truly voluntary?

CMS’s recently updated WCMSA User Guide has a new section 4.3 that makes it seem like MSAs are essentially mandatory. The good news is that CMS has laid out all the reasons why an MSA is a good idea, and all the reasons why skipping one is a bad idea. Essentially, CMS is warning us of the consequences of skipping MSAs (or of using unapproved MSA products like “Non-Submit” and “Evidence-Based” MSAs).

The consequences of skipping MSAs are why we think CMS almost considers MSAs a requirement. No MSA? Medicare will deny treatment that it assumes is case-related. Even if that treatment is not related to the case. Not only will Medicare deny that treatment, but it will also continue to do so until the beneficiary is able to show the entire net settlement has been used to pay for medical treatment.

This consequence is amplified where an injured person has significant comorbidities and preexisting conditions – especially where those injuries are similar to the sued-for injuries. An MSA helps Medicare understand the difference between preexisting and case-related injuries.

There are more new rules of the unwritten variety. As the MSA process becomes more specialized and more organized, future non-Medicare treatment gets lost in the allocation because it isn’t in the MSA allocation at all. Medicare acknowledges this reality often – most recently during a February 17, 2022 Town Hall.

So, are MSAs required by law? No. Are MSAs still a voluntary process? Yes, but only in name.

Ryan Weiner, Esq.
Chief Operating Officer
MASSIVE: Medical and Subrogation Specialists
MASSIVE is the nation’s leading independent provider of Future Medical Allocation services (including Medicare Set-Asides), and healthcare Lien Resolution.