CMS Publishes Self-Administration Toolkit

CMS, Medicare Set-Aside Blog, MSP News on April 11, 2014 | Posted by Jennifer Jordan, JD, MSCC

On April 11, 2014, CMS added an entire subsection to its WCMSA website for self-administration help. In the agency’s usual overreaching style, it has created requirements that are not supported by any law or regulation. While many of its suggestions are certainly the most logical approach to self-administering an MSA, the tone of the agency appears aimed to intimidate claimants into believing these to be legal requirements for which they will suffer greatly if they fail to comply. For example, consistent with all previous memos, the guide states that you must put your MSA into an interest-bearing FDIC insured bank account, separate from other finances, preferably in an institution that doesn’t charge for it or for low balances, and in a type of account from which you can write checks. While that certainly makes sense, you don’t have to do so. You could keep your MSA funds in a tin can under your bed so long as you spend them properly. The 0.02% interest on a free checking account will NEVER compensate for MSAs not taking into consideration medical cost inflation, so why try, CMS?

The most offensive “requirement” comes on page 6 where CMS states that you may NOT use WCMSA funds to pay for co-payments and deductibles. That’s interesting. Then shouldn’t we be deducting them from the WCMSAs? The argument for insurers funding 100% of WC fee schedule was always that that is their legal obligation. So why would it all go into the WCMSA if the claimant can’t use it to pay for 100% of his future services? Why is the claimant going out of pocket if the carrier funded it all? If this is truly CMS’ policy, then we should be separating what is currently going into WCMSAs into Medicare and non-Medicare pots.

Page 7 has some fun stuff, too. It covers the part about where physicians may charge according to how the MSA was calculated, either fee schedule or usual and customary. Of course, since the physician is no longer subject to workers’ compensation laws, the guide does note (in bold) that regardless of how the physician bills, WCMSA funds should be used to pay. The better part is when it instructs claimants to pay AWP pricing for their drugs, as their providers will have access to that resource. Aside from the repackaged-in-office dispensing crimes created by this approach, I can see them standing at the counter at CVS arguing that the pharmacy isn’t charging enough and that they are going to get into trouble with CMS.

Well done, CMS. All of those former workers’ compensation claimants that have never submitted an attestation will certainly volunteer to send them now that your policies are so clear.