We have blogged on numerous occasions regarding Workers’ Compensation Medicare Set-Aside (WCMSA) legislation that continues to be re-introduced in Congress with slight variations over the last decade (hereinafter referred to as “WCMSA Bill”). Our 2018 blog on the prior WCMSA Bill can be found here. The current 2019 proposed WCMSA Bill can be found here.

This year, the WCMSA Bill is entitled “Coordination of Medicare Payments and Worker’s Compensation Act” or the “COMP Act.” It was introduced in the U.S. House earlier this month, the Bill Number is H.R. 4161, and is supported by lead co-sponsors Mike Thomson (D-CA) and George Holding (R-NC).

It is substantially similar to last year’s legislation. As with last year’s, the WCMSA Bill no longer contains any thresholds below which MSAs (or MSP repayment) would not be required; the 2017 and prior WCMSA Bills previously proposed a $25,000 threshold for MSAs to be required. Under the current WCMSA Bill, there would be no monetary threshold to make a workers’ compensation plan primary.

The legislation requires CMS to adhere to a 60 -day turnaround time in reviewing WCMSAs. Currently, the Workers’ Compensation Review Contractor (WCRC) is reviewing submitted WCMSAs within 2-3 weeks of submission of all required documentation, therefore this imposed turnaround time would not seemingly increase the turnaround time of submissions.

The WCMSA Bill also requires CMS to adhere to state Workers Compensation fee schedules, and allows parties to pre-pay WCMSA amounts to CMS and turn back on Medicare benefits.  The legislation is explicit that MSAs remain voluntary.

Overall, the WCMSA Bill continues to be vague, and likely will die again in Congress as it provides no tangible benefit to the workers’ compensation community and WCMSAs. In our humble opinion, time and legislation would be better spent on:

  1. Directing CMS to allocate using clinical and evidence based guidelines in WCMSA allocations, specifically, the use of clinical alternatives instead of over-allocation of opioids that could harm injured workers.
  2. Expansion of Medicare’s Re-Review and Amended Review processes to allow for greater due process for parties undergoing submission of a WCMSA to CMS would be another important ask of the workers’ compensation community; the current limit of 4-year old allocations being eligible for Re-Review is an impediment to settling out many “old dog” workers’ compensation claims with outdated WCMSA approvals.
  3. Lastly, clear guidelines delineating where WCMSAs are required and are not required; CMS’ last WCMSA Reference Guide indicated through a series of examples that under-review threshold workers’ compensation claims would still require a WCMSA or medical future treatment plan or the entire settlement would be subject to recovery. For our prior blog on these under threshold examples in the last WCMSA Reference Guide, click here.

We will continue to monitor the WCMSA Bill’s progress.


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