The Achilles heel in Medicare Set-Aside compliance in workers' compensation settlements has always been self-administration. For cases within the CMS' “review threshold,” carriers and self-insureds have procured Medicare Set-Aside allocation reports at no small expense. They file for CMS approval, insisting that settlement documents provide for separate set-aside funding. Then, in 99% of the cases, the money is turned over to the claimant with little or no direction other than to go forth and administer your own set-aside account.
Most of us would be unable to keep track of the moving target of which medical goods and services Medicare will pay for. We’re not so good at submitting annual reports, either. According to the Pew Research Center, only about a third of Americans even prepare their own tax returns. Yet, insurers and self-insureds leave themselves open to Medicare Set-Aside reimbursement liability by trusting that the injured workers will be up to the self-administration task.
Finally, CMS has seen the problem and done something about it. On March 21, 2014, CMS published a Self-Administration Toolkit for Workers’ Compensation Medicare Set-Aside Arrangements. This booklet guides the self-administering former claimant through the steps, which are numerous and not all easy.
For many on both sides of the negotiating table, review of this booklet may be the deciding factor in choosing professional administration. The problem is that many settlements are too small to make custodial administration cost-effective. Some carriers and third party administrators have access to the Medicare Secondary Payer Charitable Foundation, which provides no-cost professional administration. Its account starting minimum is $25,000. Parties should check on the availability of this option before finalizing the settlement.
The purpose of Medicare Set-Asides is to prevent a double-dip: The U.S. taxpayer should not be paying medical bills for which the claimant already received advance payment through insurance. Publication of the toolkit is an important further step toward that goal.
