Medicare Set Asides: CMS Publishes WCMSA Operating Rules

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Medicare Set Asides are becoming required in the settlement of permanent disability compensation cases.   In light of the confusion and delays caused by this relatively new requirement, CMS has Published WCMSA Operating Rules.

The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals according to the Workers Compensation blogspot put out by New Jersey lawyer Jon Gelman.  CMS cited that distribution of this material may reduce review time by the agency.

The Operating Rules, an 11 page document, highlights the procedures to be utilized by CMS. They instruct CMS on how to respond to telephone quires including specific instructions such as, “Do not give recommended amounts or expected completion dates.” The Rules also instruct CMS contractor to consider the Total Settlement Amount (TSA) if the claimant has multiple workers’ compensation cases and suggest one Recommended MSA (RMSA). Therefore “apportioning” multiple claims into a series of cases below the threshold level will not avoid CMS scrutiny. Also legal malpractice awards based on the mishandling of the workers’ compensation claims are deemed not to be payments of compensation.

The Operating Rules were previously made available under a Freedom of Information Request in October 2008. The Operating Rules have been posted in redacted form and will be updated periodically by CMS.

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