WORKERS' COMPENSATION

March 24, 2022

Rasa Fumagalli JD, MSCC, CMSP-F

The Centers for Medicare and Medicaid Services (CMS) issued Version 3.6 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Guide”) on March 15, 2022. It softened the language used in the controversial Section 4.3 of the January 10, 2022 Guide (Version 3.5). This Section addressed CMS’ view of non-submitted Medicare Set-Aside (MSA) proposals and initially provided the following:

As a matter of policy and practice CMS will deny payment for medical services related to the WC injuries or illnesses requiring attestation of appropriate exhaustion equal to the total settlement less procurement costsbefore CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.

In an apparent response to the concerns raised by the Medicare Secondary Payer (MSP) compliance industry, CMS issued a revision of this paragraph in Version 3.6 of the Guide. The current section now provides the following:

As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount. (emphasis added)

A note was added to this section as well. It states:

Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period.

CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.

Although this revised provision clarifies that Medicare will resume a primary payer status when the parties show that the initial funding of the non-submitted WCMSA was sufficient, and it was properly exhausted, the exact process for proving the sufficiency of the non-submitted WCMSA proposal has not yet been defined. It is also clear that despite the policy effective date of January 11, 2022, CMS will use notice of the non-submitted MSAs to flag the Common Working Files (CWF) to potentially avoid payments up to the total settlement, less procurement costs and paid conditional payments. This flagging of the CWF may result in the development of a process whereby CMS is reviewing the appropriateness of the non-submitted WCMSA. Documentation that supports the reasonableness of the non-submitted WCMSA should be maintained in the event that is questioned by CMS. The note also clarifies that this policy is not intended to affect settlements that do not meet CMS’ internal workload review thresholds as long as Medicare’s interests have been considered in the settlement. It is rather ironic that the non-submitted MSAs that were shared with CMS in order to avoid improper payments may face greater scrutiny than the non-submitted MSAs that were never shared with CMS.

Other revisions in Version 3.6 pertained to Section 9.4.1.1 that discusses the most frequent reasons for development letters and Section 10.2 that discusses e-signatures on Consent to Release documents. The revision to Section 16.1 is significant in that it limits parties to one re-review request per particular error claim. Synergy will continue to keep you advised of MSP compliance changes as they arise.

March 3, 2022

Rasa Fumagalli JD, MSCC, CMSP-F

The Medicare Trust Fund is financially unstable. At this time, the funding for Medicare Part A, which covers hospital costs, is expected to run out by 2026. In light of this bleak picture, it is no surprise that the Centers for Medicare & Medicaid Services (CMS) is taking an even more aggressive stance when it comes to the recovery and prevention of improper payments.  Although workers’ compensation settlements that close out future medical rights have always been subject to scrutiny by CMS, CMS is moving forward with further efforts to shore up the financial integrity of the Medicare Trust Fund.

The Proposed Rule regarding “MSP and Future Medicals” (EO 12866) has essentially been on hold since December of 2018. The current version of the proposed rule states that it “would clarify existing Medicare Secondary Payer (MSP) obligations associated with future medical items services related to liability insurance (including self-insurance), no fault insurance, and worker’s compensation settlements, judgments, awards, or other payments.” It would also “remove obsolete regulations.”  On March 1, 2022, CMS presented the proposed LMSA rule to the Office of Regulatory Information and Affairs (OIRA). OIRA was also presented with the Final Rule for Medicare Secondary Payer and Certain Civil Money Penalties. Given the delivery of the proposed and final rules to OIRA, we expect to see a version of the rules rolled out over the next several weeks. We will continue to monitor the rules and keep you advised.

February 28, 2022

Rasa Fumagalli JD, MSCC, CMSP-F

There has been much discussion in the Medicare Secondary Payer (MSP) compliance industry over the addition of Section 4.3 to the revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.5 (Guide) that was issued on January 10, 2022 by the Centers for Medicare and Medicaid Services (CMS). This controversial Section addresses CMS’ view of non-submitted Medicare Set-Aside (MSA) proposals. The provision states:

A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.

As a matter of policy and practice CMS will deny payment for medical services related to the WC injuries or illnesses requiring attestation of appropriate exhaustion equal to the total settlement less procurement costsbefore CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.

Although CMS has always taken the position that in the absence of a CMS approved and properly exhausted WCMSA, it “may” refuse to pay future injury-related medical expenses until the entire settlement is exhausted, the language used in Section 4.3 is troubling. It is inconsistent with other statements in the Guide as well as the agency’s own regulations (42 C.F.R. § 411.46).

Section 1.0 of the Guide clearly states that “there are no statutory or regulatory provisions requiring that you submit a WCMSA proposal to CMS for review.” Since CMS review of a WCMSA proposal is voluntary, Section 4.3’s language that CMS will deny payment for injury-related medical expenses up to the total settlement amount less procurement costs as a matter of policy and practice is an overreach by CMS. Furthermore, this view creates a presumption that any non-submitted WCMSA is shifting a financial burden to Medicare without providing a method to rebut this presumption. It also overlooks the fact that CMS does not provide for a review of the cases that do not meet CMS’ internal workload review threshold for submissions.

Section 4.3 also points to 42 C.F.R. § 411.46 as general support for CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. This reference however fails to address 42 C.F.R. § 411.46(d)(2) which discusses compromise settlements. This section states: “If the settlement agreement allocates certain amounts for specific future medical services, Medicare does not pay for those services until medical expenses related to the injury or disease equal the amount of the lump-sum settlement allocated to future medical expenses.”

The changes to the Guide have caused some parties to re-evaluate the pros and cons of entering into a settlement with a non-submitted WCMSA. This concern may have also been heightened by the circulation of a January 13, 2022, letter from CMS’ RO-9 Customer Service representative to a claimant in response to CMS’ receipt of notice of a workers’ compensation settlement that included funds for a non-submitted WCMSA. The CMS letter referenced portions of Section 4.3 of the Guide.

In a possible response to the industry’s concern about the addition of Section 4.3 to the Guide, CMS held a webinar on February 17, 2022, to discuss a variety of WCMSA topics. CMS’ representative, John Jenkins explained that Section 4.3 was added to the Guide to “clarify” CMS’ position on non-submitted MSAs. He advised that that when CMS reviews and approves a WCMSA, the marker in the Medicare beneficiary’s Common Working File (CWF) is fixed at the amount of the CMS determined WCMSA as opposed to the net settlement. Once the CMS determined WCMSA is properly exhausted, Medicare will pay as the primary payer for any additional injury-related care. On the other hand, whenever CMS becomes aware of a settlement that includes funds for a non-submitted MSA, a marker is placed in the Medicare beneficiary’s CWF reflecting the total value of the settlement less procurement costs and conditional payments. The impact of this marker is that injury-related claims may be denied until CMS removes the marker that is set at the net settlement amount. Medicare becomes aware of the existence of non-submitted MSAs when they are provided with MSA administration attestations and settlement documents. Jenkins advised that CMS does not use the Section 111 data to identify settlements that are not submitted to CMS for review. This author presumes this is due to the voluntary nature of CMS review of WCMSA proposals. Jenkins confirmed that Section 4.3 would apply as of January 11, 2022.

The impact of Section 4.3 will be felt at the time that a non-submitted WCMSA is exhausted, and Medicare is presented with an injury-related bill for payment. This will occur earlier when the non-submitted WCMSA is funded with a structure. When Medicare denies a bill, the Medicare beneficiary or their representative will have the opportunity to appeal the denial through the administrative appeal rights. The basis for the appeal would be the proper exhaustion of an objectively reasonable and defensible MSA that was prepared at time of settlement.

Jenkins also used the webinar to explain the projection methodology used by the Workers’ Compensation Review Contractor (WCRC) when evaluating a WCMSA proposal. Jenkins stressed the all-important need to protect Medicare from ever being presented with any injury-related bills. This is done by assuming the worst-case scenario when it comes to the need for possible future injury-related treatments. The fact than an individual has discharged themselves from any further injury-related treatment in the years prior to settlement is irrelevant when it comes to estimating future injury-related treatment. After all, it is possible that he may return for care. Similarly, an individual who is unable to move forward with an injury-related procedure due to co-morbid conditions, might get over the co-morbid conditions in the future and should have an MSA pay for the procedure. Jenkins also touched on the need to submit settlement documents in order to finalize a CMS approved WCMSA and addressed questions regarding the amended review timeline and other miscellaneous MSP compliance matters.

Conclusion

There is no doubt that Medicare is a secondary payer when “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State . . . .”(42 U.S.C. § 1395y(b)(2)(A)(ii), § 1862(b)(2)(A)(ii) of the Social Security Act, 42 C.F.R. § 411.20(2)(i)). It is also clear that Medicare is precluded from making payment for services to the extent that “payment has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile, or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” (42 U.S.C. § 1395y(b)(2)(A)(ii), § 1862(b)(2)(A)(ii) of the Social Security Act, 42 C.F.R. § 411.20(2)(ii-iii)). Given an employer’s responsibility in an accepted workers’ compensation claim to pay for ongoing injury-related medical services, both defense and petitioner attorneys generally have no issue with the funding of a Medicare Set-Aside in certain settlements to avoid cost shifting these expenses to Medicare.

The main issue with CMS review is that it often results in overfunded CMS WCMSA determinations since CMS consistently projects for worst case future treatment scenarios. If an individual’s injury-related treatment has plateaued and he has not received any medical treatment for years before the CMS submission, it is extremely unlikely that a workers’ compensation carrier would ever have to pay for any further treatment. If the WCRC and CMS looked to evidence-based medicine guidelines and a “reasonably likely to occur” standard of projection rather than a possible worst case scenario standard in estimating future injury-related care, the number of WCMSA submissions would significantly increase. This simple action by CMS could alleviate the decline in WCMSA submissions.

An additional issue with the CMS submission process is that it is often unduly burdensome with development letters being issued for information that is simply unavailable. These conditions spawned the birth of the non-submit MSAs. The non-submit MSAs were never intended to cost shift to Medicare as evidenced by the voluntary sharing of their existence with Medicare.

Section 4.3 of the Guide will impact a Medicare beneficiary when the non-submitted MSA is exhausted since the marker in the beneficiary’s CWF will reflect the total settlement less procurement costs. Although this will trigger a denial of additional injury related expenses a non-submit MSA that is projected based on evidence-based medicine guidelines and properly exhausted should withstand scrutiny. It is also unlikely to exhaust prematurely. It is unfortunate, however, that CMS is placing additional and unnecessary burdens on Medicare beneficiaries that have suffered workplace injuries. The  addition of Section 4.3 to the Guide is deleterious to the injury victim. Rather than relying on the defense to address the MSA in a settlement, the petitioner/applicant attorneys should take charge of the process. Synergy Settlement Services is here to help you with a wide array of services.

February 8, 2022

Rasa Fumagalli JD, MSCC, CMSP-F

Most workers’ compensation attorneys have probably encountered a CMS WCMSA determination that is higher than the original Workers’ Compensation Medicare Set-Aside proposal that was submitted for review. A higher WCMSA determination post CMS review may occur for a variety of reasons. For example, there may be a variation in the pricing software used by the submitter and CMS’ Workers’ Compensation Review Contractor (WCRC). Or the WCRC may have been presented with additional information in response to a development letter that supports the higher WCMSA determination. Other reasons may include the addition of treatment projections for a resolved condition or a denied condition. Once the initial surprise of an increased WCMSA coming from CMS wears off, the parties should consider their options for salvaging the settlement.

Although CMS does not have a formal appeal process, Section 16.1 of CMS’ Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (Version 3.4) provides for a “request for re-review” in two situations. The first option is available when the CMS determination contains “obvious mistakes” such as a mathematical error or the failure to recognize that a treatment included in the CMS projection has already occurred. The second “missing documentation” option for re-review is available when the submitter has additional evidence that is dated prior to the submission of the original proposal but wasn’t considered by CMS. Section 16.1 specifically states that a disagreement between the submitter and CMS about the inclusion or exclusion of a specific treatment or medication is not considered a mathematical error.

In addition to the re-review, there is also an “amended review” process which is available under very specific circumstances. Section 16.2 of the WCMSA Reference Guide provides that the following criteria must be met to submit the one-time re-review request to CMS:

  1. The CMS determination letter must have been issued at least 12 but no more than 72 months prior,
  2. As of the date of the request for re-review, the case has not yet settled.
  3. The projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount
    • The approval of a new generic version of a drug is an insufficient reason for an amended review.

The amended review submission must include a new cover letter, all medical documentation related to the settling injury/ body parts since the previous submission date, the most recent six months of pharmacy records, a consent to release form and a summary of the expected future care. The amended review also requires the submitter to provide medical record references showing that specific CMS determination line items have already taken place or been replaced by other treatment recommendations. If different care is being recommended, these new line items must be added. Submitters will not be allowed to supplement the request for the amended review. Once the amended review request is approved by CMS, the new approved amount will take effect on the date of the settlement.

It is important to note that the amended review process is only available once and should be used strategically, i.e. at the point when you are most likely to obtain the lowest CMS determination. In addition, the submission may require that you secure more than the last two years of injury related records. If the CMS determination was issued five years ago, you will need to obtain and provide records from the date of the last medical report included in the original WCMSA proposal submission to the time of the amended review submission.  Since the submitter will not be allowed to supplement the request for the amended-review, it is extremely important that all of the necessary documentation is included in the submission.

In the event that the parties prefer to save the settlement without involving CMS any further, they will have to find a way to avoid a cost shift of post settlement injury related care to Medicare. This might be done through the funding of an evidence-based medicine MSA that is professionally administered in order to extend the life of the funds.  If the funds are sufficient for the post settlement injury related care, there shouldn’t be an issue with Medicare ever being presented with bills for this treatment. Should the funds be insufficient however Medicare will exclude its payments for the injury related medical expenses until the settlement funds expended for services otherwise covered by Medicare use up the entire settlement. This risk is one that may be unacceptable to the parties.

Another way to potentially bridge the gap is to explore funding options for the WCMSA using structured settlement annuities.  Structured settlement annuities can greatly reduce the cost of funding by using rated ages and the time value of money.  Typically, there is a 20-30% cost savings by using a structured settlement to fund a WCMSA versus lump sum funding.

Synergy’s WC Medicare Expert Case Evaluation service provides the workers’ compensation practitioner with a case specific consultation that addresses the various Medicare Secondary Payer compliance options in a case in order to help select the best strategy for the settlement.

Learn more about Synergy’s WC Medicare Expert Case Evaluation services here.

By: Joanna Wynes, J.D., Partner Planner

The primary goal of a plaintiff’s attorney in a personal injury or workers’ compensation action is to achieve the greatest possible financial recovery given the facts and circumstances of the case. Once there is an agreement on the amount to settle the case for the injury victim or workers’ compensation claimant, there is a one-time opportunity for the plaintiff to invest a portion of the recovery in a structured settlement annuity. The decision to purchase a structured settlement with a portion or all of a victim’s settlement must be made before receipt of the proceeds.

What is a Structured Settlement and Why is it Used?

A structured settlement is an investment vehicle where the settlement proceeds are paid as a periodic stream of payments instead of a lump sum payment or in addition to a lump sum.

Since their inception in 1982, structured settlement annuities have been considered one of the safest financial options at settlement for personal injury and workers’ compensation victims. Prior to the creation of structured settlements, plaintiffs could only receive their settlements in the form of a one-time lump sum cash payment. As a result of limited financial expertise and the fact that many plaintiffs receive more funds from a settlement than they have ever had in their lifetime, there is a significant risk of quick dissipation of settlement funds. In fact, there is anecdotal evidence that ninety percent of claimants quickly dissipate lump sums received for personal injuries within five years of receipt of the lump sum. A structured settlement provides financial management for settlement funds and can be designed in various ways to meet a plaintiff’s needs. Depending on the type of structured settlement plan selected, it can ensure that the settlement proceeds will last for the rest of an injury victim’s life.

A structured settlement has many advantages over taking an entire settlement as a lump sum, as discussed in more detail below:

  • A structured settlement offers valuable tax incentives: Although personal injury and workers’ compensation settlement proceeds are tax-free, any interest earned on traditional investments is fully taxable. To promote the use of structured settlements, Congress amended the federal tax code to make 100% of every structured settlement payment received on account of personal physical injury or sickness exempt from income taxes.
  • A structured settlement helps provide financial security: Traditional investments typically do not offer a guaranteed return. A structured settlement, on the other hand, creates a fixed stream of guaranteed income with a guaranteed rate of return, which allows a personal injury victim the ability to recover without spending time and resources determining investment strategies. Additionally, a structured settlement can help protect funds from creditors, relatives, friends and others seeking money when they learn of a large settlement.
  • A structured settlement is flexible in design: A personal injury or workers’ compensation victim can design a structured settlement to provide a monthly check to help pay for basic needs such as food, clothing, transportation and/or housing. Alternatively, it can be used to provide for the future cost of college, retirement funds and/or a down-payment on a home.
  • A structured settlement is backed by the highest-rated insurance companies: A structured settlement is contractually guaranteed by a highly rated, well-capitalized life insurance company.

Cases in Which a Structured Settlement Should Be Considered:

 Structured settlements are ideally suited for many types of cases including: 1) cases that involve minors or persons found to be incompetent; 2) people with temporary or permanent disabilities; 3) severe injuries necessitating extensive future medical care and income replacement; 4) wrongful death cases where the surviving spouse and/or children need monthly or annual income, or assistance with education expenses; and 5) workers’ compensation cases.

Case Studies:

                20-Year-Old Female: Anna Parker (name changed for privacy and confidentiality)

                Ms. Parker was significantly injured in an automobile accident. Although she was not completely disabled, her injuries significantly diminished her future employment capacity. Ms. Parker’s case settled for policy limits, and after the payment of attorneys’ fees and costs, she was going to net $350,000.00. Ms. Parker elected to take $40,000.00 of her net settlement proceeds in a lump sum at the time of settlement to buy a used car and rent a new apartment. She also elected to invest $310,000.00 in a structured settlement, which would provide her with guaranteed monthly payments of $1,169.27 for thirty years to help her with monthly bills as her earnings capacity was diminished. The contractually guaranteed payments under the plan selected totaled $420,937.20. Accordingly, her structured settlement was guaranteed to earn $110,937.00 of tax-free interest on her investment.

9-Year-Old Female: Lisa McDonald (name changed for privacy and confidentiality)

Lisa McDonald sustained a severe arm fracture as a result of medical negligence as a young child. Her case settled when she was 9 years old for $750,000.00. After attorney’s fees and costs, she was going to net $400,000.00. Because she was a minor at the time of settlement, and not disabled, her parents had two choices for her settlement funds under Maryland law. One option was to place her funds in a statutory “Title 13 Trust.” With this option, her funds would be in a restricted bank account, earning little to no interest until she reached the age of 18. The funds would not be available for use without Court Order prior to the age of 18, and upon age 18, Lisa would be able to withdraw all of her money at any time. The other option was a structured settlement, which could start paying her at or after the age of 18 on a schedule selected by her parents and was guaranteed to earn significant interest. After speaking with her parents, we designed a structured settlement so that Lisa would receive semi-annual payments of $20,000.00 for four years starting in the summer following her 18th birthday, with the intention that those payments would assist with college tuition. Her parents also elected for her to get a guaranteed lump sum of $45,000.00 on her 23rd birthday, $30,000.00 on her 25th birthday and $322,918.47 on her 27th birthday. The contractually guaranteed payments under the plan selected totaled $557,918.00. Accordingly, her structured settlement was guaranteed to earn $157,918 of tax-free interest on her investment.

Conclusion

If you or a family member are anticipating a settlement for personal injury or sickness, speak with your attorney about getting a structured settlement consultant involved to discuss options for your settlement proceeds, and to ensure that a plan is putting in place prior to signing settlement documents and receiving funds. Alternately, reach out to a settlement planner, such as myself, directly, to learn whether a structured settlement might be right for you or your family.

October 14, 2021

Rasa Fumagalli JD, MSCC, CMSP-F

As we reflect on the 20th anniversary of the devastating September 11, 2001, terrorist attacks on US soil and all the lives lost, we cannot forget the heroic efforts of all the first responders and workers involved in the clean-up of the devastation sites. Since then, many have developed a whole host of health conditions due to the exposure to toxic chemicals and the gruesome nature of the work. This month’s “Since You Asked” column will address the interplay between workers’ compensation claims, the World Trade Center (WTC) Health Program, and the Medicare Secondary Payer Act.

Question:

My client sustained a workers’ compensation injury during the clean-up of the World Trade Center Ground Zero site. Should I have a Medicare Set-Aside proposal submitted to CMS for review or is there a different process for this? 

Answer:

The clean-up of the September 11, 2001 devastation sites exposed many workers to dust and toxic chemicals for a prolonged period. This resulted in the development of respiratory illnesses as well as different cancer types and other conditions.  No cost medical monitoring and treatment for certain medical conditions may be available through the federal World Trade Center (WTC) Health Program for qualified workers that provided rescue, recovery, debris clean up or related services after the 9/11/2001 attacks during the period between 9/11/2001 and 7/31/2002. By way of background, the WTC Health Program was developed in connection with the passage of the James Zadroga 9/11 Health and Compensation Reauthorization Act. The Act is named after a New York City police officer who developed a respiratory disease after his prolonged exposure to dust at the WTC Ground Zero Site. The WTC Health Program is administered by the National Institute for Occupational Safety and Health (NIOSH) and is funded through 2090. Details regarding eligibility and enrollment into the WTC Health Program may be found here.

Workers that are enrolled in the WTC Health Program may also have a companion workers’ compensation case. The coordination of benefits between the WTC Health Program and the workers’ compensation plan is addressed in the WTC Health Program’s “Policy and Procedures for Recoupment Lump-Sum Workers’ Compensation Settlements” (Policy) guide that was last revised on July 7, 2016. When a settlement releases an employer/insurer from responsibility for future medical expenses, the WTC Health Program will seek to recover its cost of providing health care and pharmacy benefits “either from the member or from the individual/entity designated to administer any set-aside established to pay for future medical expenses.” The WTC Health program “will follow best practices for WC recoupment as outlined by the Centers for Medicare & Medicaid Services (CMS) in its “Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide.”

The Policy guide also provides information on how to estimate the amount of money to be set aside to protect the WTC Health Program. If CMS reviewed and approved a WCMSA for expenses related to the same conditions that were certified for treatment under the WTC Health Program, the CMS determination will be given deference.  The funds in the CMS reviewed WCMSA however must be used to reimburse the WTC Health Program annually for the cost of the treatment that was provided in the case. The Policy Guide also provides for the submission of proposed set-asides to the WTC Health program for review.

In your case, I would recommend that you determine whether your client qualifies for the WTC Health Program. This would then guide you in deciding how to address future injury related medical expenses in a settlement that closes out future medical care.

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