Dear Jen: I am a claimant’s attorney who is about to finalize a C&R agreement. In order to settle the case, we have had an MSA prepared and the total settlement amount is such that CMS review is required. My client is no longer seeking or receiving medical treatment related to his work injury. Why can’t the MSA be a zero allocation? – Nathan, WC Attorney, Denver
Zero allocations are uncommon but hopefully the following will answer your question. Circumstances do exist where a Medicare Set-Aside (MSA) is not necessary. The most obvious cases are ones in which the medical portion of the settlement remains open. However, there are cases where a claimant is no longer treating or, alternatively, is treating exclusively with services such as acupuncture or over-the-counter prescription drugs for pain (i.e. non-Medicare-covered treatments). If the facts of a case demonstrate that the injured individual is only being compensated for past medical expenses, there is no evidence that the individual is attempting to maximize other aspects of the settlement to Medicare’s detriment, and the individual’s treating physicians conclude in writing that, to a reasonable degree of medical certainty, the individual will no longer require any Medicare-covered treatments related to the workers’ compensation injury, CMS has stated that an MSA is unnecessary. If you want more case-specific information, feel free to contact us for a consultation on any particular case.
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