Even if your settlement does not satisfy either of the above-criteria, Medicare’s interests should still be considered and, depending on the claim, it may be prudent to still enter into a WCMSA even if CMS will not be reviewing it. 

C.     Is there a “Safe Harbor” Threshold When it Comes to Protecting Medicare’s Interests

No.  CMS has issued memoranda stating that there is no guarantee that, just because a settlement did not meet or exceed the thresholds it has established and the set-aside was therefore not reviewed by CMS, that an employer cannot later be held accountable for monies Medicare expends on treatment for industrial injuries.  In fact, CMS recommends a WCMSA be obtained even in situations where CMS review thresholds are not met and they will not review the proposal.  Even in the situation where a claim has been denied and no benefits have been provided under the workers’ compensation system, the parties to a claim need to bear in mind the present and future potential use of social welfare programs such as Medicare, and include special provisions to protect against any future claim for reimbursement. 

D.    What Do I Do if My Settlement Requires a WCMSA?

In order to protect the parties’ interests, the settlement documents should specifically state the injured worker’s anticipated future medical care needs and how much money is being set aside for the specific treatments.  Towards that end, this office typically includes within the terms of its settlement documents a characterization of benefits, outlining the necessary future medical care as indicated by the treating and/or evaluating physicians and how the settlement proceeds are to be allocated. 

E.   If a WCMSA Custodian Agreement is Utilized, Must an Independent Administrator be Designated?

No.  In most cases, it is acceptable to permit an injured worker to self-administer their custodian account.  However, in instances where the terms of the custodial account are complex, the injured worker does not wish to be the administrator or the amount being set aside has a significant value, there are professional administrators who will administer the accounts for a fee.