• Menu
  • Skip to main content
  • Skip to secondary navigation
  • Skip to primary sidebar
  • Skip to footer

Before Header

  • About
  • Search
  • Resources
  • Privacy
  • Contact
 

Amaxx Workers Comp Blog

Reduce Workers Compensation Costs By 20-50%

Header Right

  • Home
  • Books
    • Big Book
    • Mini Book
  • Training
    • WC Mastery Membership
    • Course Curriculum
    • Certified Master of Workers’ Compensation
    • Certified Master of WC – Best in Class
  • Coaching
    • CompElite Strategic Coaching for Employers
    • BrokerElite Coaching for WC Business Growth
  • Software
  • Blog
  • Advertising

Mobile Menu

  • Home
  • Books
    • Big Book
    • Mini Book
  • Training
    • WC Mastery Membership
    • Course Curriculum
    • Certified Master of Workers’ Compensation
    • Certified Master of WC – Best in Class
  • Coaching
    • CompElite Strategic Coaching for Employers
    • BrokerElite Coaching for WC Business Growth
  • Software
  • Blog
  • Advertising
  • About
  • Search
  • Resources
  • Privacy
  • Contact
You are here: Home / Litigation Management / Five Strategies Tried to Avoid Medicare Set Asides

Five Strategies Tried to Avoid Medicare Set Asides

January 31, 2010 By //  by Robert Elliott, J.D. 2 Comments

5 Strategies Tried to Avoid Medicare Set Asides While Medicare Set-Asides (MSAs) are designed to protect Medicare and the claimant, claimants and their attorneys often look for ways around them. Generally, avoiding MSAs is tough to do.

Strategies Tried to Avoid MSAs

  1. There is one approach to avoiding MSAs that works — go to court or to the work comp board. The Centers for Medicare and Medicaid Services (CMS) will honor judicial decisions by a court or state work comp boards after a hearing on the merits of a work comp claim. If the court or a state’s workers’ comp board designates a portion of the funds to future indemnity and a portion to future medical care, then Medicare will accept that designation of funds. The downside to this approach is the insurer and the claimant are not negotiating the settlement.
    Click Link to Access Free PDF Download

    “How To Avoid, Manage, And Win Workers’ Comp Claim Litigation”

For CMS to honor the court’s decision or ruling, it must be solely the court’s or work comp board’s decision, not the court or work comp board approving a settlement agreement entered into by the claimant and insurer. CMS will not accept the terms of the court or work comp board approved settlement if the amount of the future medical payments are inadequate to cover all future medical expense. CMS takes the position that if Medicare’s interest are not protected, then Medicare will not pay for medical services related to the work comp claim until the work comp related medical expenses have exhausted the entire WC settlement, including what was designated as indemnity. If Medicare determines it has paid for a work comp related medical expense, it will seek reimbursement from the claimant and/or the medical provider.

  1. Occasionally you will have the claimant who really does not want to deal with Medicare or who thinks he can outsmart CMS. The claimant will be willing to waive his interest in any future medical care related to his work comp settlement to reduce or eliminate the portion of the MSA related to medical. The claimant can even go so far as to sign an affidavit or some other legal document asserting Medicare will not be billed for any medical services not included in the MSA.

This approach will not work. The Regional Offices (RO) of CMS will not approve work comp claim settlements agreeing not to bill Medicare for future work comp related medical care.

  1. Another approach taken by some work comp claimants is to refuse to enter into a settlement involving the CMS or a MSA. They take the approach if no one tells CMS about their work comp claim, they will settle now and even settle for a little less. Do not go there!

The CMS position is you are still responsible to comply with the law. When CMS finds out about the work comp claim (and they will), CMS will pursue recovery for the payments they have made for work comp related medical service. When the claimant refuses to settle because of the potential for CMS involvement, your insurer should notify the CMS RO. The RO will send the claimant a certified letter asserting their interest in the WC settlement. The RO will quote the statute’s book and verse to the claimant.

Again, CMS will take the position that if Medicare’s interest is not protected, they can refuse to pay for medical services related to the work comp claim until the work comp related medical expenses have exhausted the entire WC settlement, including what was designated as indemnity.

  1. A favorite approach of some claimant attorneys is to go the structured settlement route in an effort to circumvent the CMS and the need for a MSA. For example, they put forth that the cost to purchase the structured settlement is $200,000 and that the claimant is not yet enrolled in Medicare. The proposed structured settlement is $50,000 now and $20,000 per year for 15 years, or a total payout by the structured settlement of $350,000 ($20K X 15 yrs = $300,000, + $50K).

This will not work either if the claimant has a “reasonable expectation” of enrolling in Medicare within the next 30 months. CMS will not look at what is paid today for the structured settlement ($200K), but at the total amount to be paid to the claimant over the life of the structured settlement ($350K).

  1. Then there is the claimant and his attorney who want the all cash settlement for $250,000.00 and not one penny more (as it would then be greater than $250K and subject to a MSA). However, the insurer (and probably the attorney as well) think the true value of the work comp settlement is $275K. To protect themselves the insurer or the attorney asks the CMS to issue a letter certifying that a MSA is not necessary.


CMS will not
issue such a letter. You can still settle for $250K and the claimant will not be subject to protecting Medicare’s interest, if at the time of the settlement the claimant has not applied for Medicare and does not have “reasonable expectations” of doing so in the next 30 months.

FREE DOWNLOAD: “How To Avoid, Manage, And Win Workers’ Comp Claim Litigation”

DO THIS!

The best approach is not to think of ways around the MSA on your very large work comp claims, but to protect the claimant from future Medicare recovery claims by having the MSA reviewed and approved by CMS. It is CMS’s policy to review all proposed work comp settlements within 60 days (it does not always happen!) of all necessary documentation being presented. Take the time for the CMS approval, in the long run you will be glad you did.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.

WC Books: http://www.reduceyourworkerscomp.com/workers-comp-books-manuals.php
TD Calculator: http://www.reduceyourworkerscomp.com/transitional-duty-cost-calculator.php
WC Calculator: http://www.reduceyourworkerscomp.com/calculator.php

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

FREE DOWNLOAD: “How To Avoid, Manage, And Win Workers’ Comp Claim Litigation”

Filed Under: Litigation Management Tagged With: Legal Issues: Employers & Employees, Medicare Set Asides (MSAs), Settling WC Claims

Related Articles

Win Without the Fight: How Employers Can Prepare for Trial—And Avoid It Entirely

Win Without the Fight: How Employers Can Prepare for Trial—And Avoid It Entirely

From Adversaries to Allies: Why Employers and Defense Attorneys Must Act Like a Team

From Adversaries to Allies: Why Employers and Defense Attorneys Must Act Like a Team

Breaking the Cycle: How Fear Drives Workers’ Comp Litigation—and What to Do About It

Breaking the Cycle: How Fear Drives Workers’ Comp Litigation—and What to Do About It

Metrics to Consider in Work Comp Litigation

Metrics to Consider in Work Comp Litigation

8 Categories To Define A Winning Workers’ Comp Litigation Strategy

8 Categories To Define A Winning Workers’ Comp Litigation Strategy

8 Tips for Picking the Best Workers’ Comp Defense Attorney

8 Tips for Picking the Best Workers’ Comp Defense Attorney

COVID-19 and Statutory Presumptions

COVID-19 and Statutory Presumptions
Reduce Costs via Workers' Comp Litigation Management

Why Worker Comp Litigation Stalls and How To Get it Moving

Why Worker Comp Litigation Stalls and How To Get it Moving
workers comp litigation rate

17 Ways to Win Your Claims in Workers Compensation Litigation

17 Ways to Win Your Claims in Workers Compensation Litigation
Key Steps to Avoid and Manage Workers’ Comp Litigation

Identify And Correct Workers’ Comp Litigation Drivers

Identify And Correct Workers’ Comp Litigation Drivers

Avoid Workers’ Comp Litigation

Avoid Workers’ Comp Litigation

Overcoming Covid-19 Workers’ Comp Litigation Barriers

Overcoming Covid-19 Workers’ Comp Litigation Barriers

Train to Succeed

BECOME CERTIFIED IN WORKERS’ COMPENSATION

Proven Course Catalog & WC Toolbox Give You The Power To Achieve Lower Costs and Better Injured Worker Outcomes

VISIT WORKERS' COMP TRAINING CENTER

Free Download

How To Avoid, Manage, And Win Workers' Comp Claim Litigation - FREE Download Click Here Now!

Previous Post: « Injuries Arising While Driving For Coffee Arose in Course of Employment
Next Post: Eight Top Things an Employer Can Do Better to Reduce Work Comp Costs »

Reader Interactions

Comments

  1. Deanna lundgren

    January 20, 2023 at 8:55 am

    I have a medical set aside that it has insured me from my lumbar to my feet I have had many times and many complaints they are not serving my medical needs they are not complying with my court order I do not know where to go to for help I’ve spoke to many people what they are doing is wrong refusal and denial of my medical needs against the decision of the judges court order where do I go for help

  2. Pharriswebb

    June 9, 2022 at 1:32 pm

    I have a Medicare set aside $200,000 it’s been there 12 years and never used one dime of it my attorney said it was only b40,000 I signed the papers and I didn’t know they were going to take over half I only came out with $197 he’s a rip off I need help to get that $200,000 back out like I said I haven’t used one dime of it I’m 68 years old

Leave a Reply

Your email address will not be published. Required fields are marked *

Primary Sidebar

FREE DOWNLOAD

How To Avoid, Manage, And Win Workers' Comp Claim Litigation - FREE Download Click Here Now!

Our Sponsors

Catastrophic and Risk Solutions, Case Management Solutions, and Specialty Networks
 

Injury Management Solution for Employers

Blog Categories

Search Our Archive

Subscribe to Our FREE Newsletter

Return-to-Work Essentials

Footer

Search Our Archive

Search our continually growing archive of over 5,000 articles about Workers' Comp issues.

Quiclinks

  • Calculators
  • Terms & Abbreviations
  • Glossary of WC Premium Terms
  • WC Resources
  • Best Practices
  • Industries
  • Return-to-Work Essentials

RSS Recent Blog Posts

  • Win Without the Fight: How Employers Can Prepare for Trial—And Avoid It Entirely
  • From Adversaries to Allies: Why Employers and Defense Attorneys Must Act Like a Team
  • Breaking the Cycle: How Fear Drives Workers’ Comp Litigation—and What to Do About It
SUBSCRIBE TO OUR FEE NEWSLETTER
Let Us Help You Stomp Down the High Cost of Workers' Comp!
Top of Page ↑
  • Home
  • Training Center
  • Search
  • Membership
  • Products
  • Blog
  • About
  • Contact
  • Subscribe
  • Login
Copyright © 2025 Amaxx, LLC. All Rights Reserved. · Privacy Policy / Legal Notice