Some companies market Medicare Set-Asides that are not submitted to CMS for approval because the vendor "guarantees the MSA results" by agreeing to indemnify the parties against any subsequent CMS demands additional MSA funding. Non-submittal MSAs are legal, and seemingly have nominal risk if done using the same scientific evidence as used on submitted MSAs. Therefore, the industry was surprised by the latest CMS memo.

On 1/10/2022, CMS issued its' updated reference guide (WCMSA) which stated under section 4.3 that MSAs which are not formally submitted and approved by CMS, will be deemed inadequate. As a result, CMS will not provide payment of medical services for work comp related injuries or illnesses until there is a complete accounting of all expenditures from the MSA settlement amount.

[COMMENT: There are questions as to whether CMS has the legal authority to take such a stance, or the personnel to actually take any action on non-submitted MSAs. In light of this CMS stance, will parties continue to use non-submitted MSAs rather than dealing with the delays of the formal submittal process?]