Do I Need An MSA?

The Medicare Secondary Payer statute applies to claims that are 1) being settled, 2) where future medical care is a component of the settlement and 3) wherein the claimant is a “qualified individual”.

Qualified Individual means:

Class I:

  • Claimant has been receiving Social Security Disability Benefits for 24 months”
  • Claimant has been diagnosed with End Stage Renal Disease (ESRD)

Class II:

  • Claimant has a “reasonable expectation” of becoming a Medicare beneficiary within 30 months of the date of settlement

“Reasonable Expectation” of Medicare eligibility means:

  • Claimant has applied for Social Security Disability Benefits
  • Claimant has been denied Social Security Disability Benefits, but anticipates appealing the denial
  • Claimant is appealing or re-filing for Social Security Disability Benefits

Do I need to Submit the MSA to CMS for Review and Approval?

The current CMS review thresholds for Workers’ Compensation cases are as follows:

  1. The claimant is a Medicare beneficiary at time of settlement and the settlement amount is greater than $25,000 OR
  2. The claimant is not a Medicare beneficiary at time of settlement but has a “reasonable expectation” of Medicare enrollment within 30 months of the settlement and the settlement amount is greater than $250,000.

Again, “Reasonable expectation” includes, but is not limited to: situations where the claimant has applied for social security disability(SSD); claimant has been denied SSD but anticipates appealing the decision or re-filing for SSD; claimant is 62 years and 6 months old(meaning they will be eligible for Medicare in 30 months based on age); End Stage Renal Disease.

CMS is on record as stating that these review thresholds are simply agency “workload review” thresholds and are NOT  “safe harbors”. It is CMS’ position that their interests must always be considered and protected.

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