Jeffrey P. Gale, P.A. // Medicare Set-Aside (MSA) Issues in Florida Workers’ Compensation Cases

Medicare is a taxpayer-funded federal health insurance program that pays some health insurance costs. People are eligible for Medicare when they turn 65 years old. In addition, Medicare is automatically available 24 months after becoming entitled to Social Security Disability Income (SSDI). (Date of entitlement is the date of disability plus a five month waiting period. For example, if the date of disability is June 1, 2024, the date of entitlement is November 1, 2024, meaning that the earliest the applicant will qualify for Medicare is November 1, 2026 — there are exceptions to this rule if the disabling diagnosis is End Stage Renal Disease or ALS.)

Medicare will not pay the medical expenses associated with a job accident while the workers’ compensation carrier is paying for the care. This is simple and straightforward. Matters become more complicated when a settlement of the workers’ compensation case is contemplated.

While the workers’ compensation carrier will not pay for medical care after a settlement, Medicare places conditions on paying for post-settlement accident-related medical services. Before it begins paying, Medicare requires that a portion of the settlement proceeds be depleted on accident-related medical expenses.

This requirement does not apply in every instance. It is only triggered under these circumstances:

• The total workers’ compensation settlement amount is over $25,000 and the claimant is a Medicare beneficiary.
• The claimant is not a Medicare beneficiary, but expects to enroll within 30 months of the settlement date, and the total settlement amount is over $250,000.

When the requirement is triggered, Medicare should be presented with a proposed amount to be paid from the workers’ compensation settlement before the settlement becomes binding. While the settlement does not have to be made contingent on Medicare’s approval, the workers’ compensation insurance carrier will insist on it. In most cases, it’s also a good idea for the claimant. The proposal is called a Medicare Set-Aside (MSA).

The workers’ compensation carrier hires a company to prepare and submit the Set-Aside to the Centers for Medicare and Medicaid Services (CMS). The amount of the proposal is based on a calculation of anticipated future medical expenses. It generally takes Medicare 30 to 60 days to review the proposal and respond.

Not infrequently, CMS rejects the proposal. When it does, it will propose an acceptable amount. For this reason, the workers’ compensation settlement agreement should include language allowing both parties the option of meeting CMS’s proposal. This language keeps the settlement agreement from being automatically void upon CMS’s rejection. In many instances, the workers’ compensation insurance carrier will agree to pay the difference, and it sometimes makes sense for the injured worker to pay the difference or chip in with the carrier.

The MSA money can only be used on accident-related medical expenses, and CMS has strict reporting requirements. Because a violation of either will relieve Medicare of further responsibility, a professional should be hired to administer the MSA at a reasonable cost. It’s worth it.

The MSA lump sum can be annuitized. This frees up more of the settlement money than if the entire lump sum is put into a Set-Aside account initially. We recently settled a case with an $87,000 Set-Aside projection. The annuity on this required a $56,000 investment, thus freeing up some $30,000 the claimant can use on things other than medical expenses.

The claimant does not have to put the money into a recommended MSA. The consequence is that Medicare will not pay for any accident-related medical expenses. When our clients choose this route, we have them acknowledge in writing their understanding of the consequences.