Question: I have a client who is not a CMS beneficiary yet however we included a professionally prepared MSA into the agreement noting that CMS consent is not needed since she is not yet a CMS beneficiary. She will not be a beneficiary for another several years. Once she puts the funds into herself administered MSA account must we submit a copy of the workers comp settlement agreement to CMS immediately and must she submit the annual account expenditure form annually during the period prior to becoming a CMS beneficiary?
Answer: Thanks for the question! Medicare Set-Asides (MSAs) are a subject of conjecture for many attorneys, and a source of great concern for plaintiffs who fund them as part of resolving a workers’ compensation, automobile, liability insurance or no-fault claim. As a threshold issue, we note that your conservative take on the MSA issue will most certainly withstand any scrutiny on the issue going forward.
Now, with respect to your primary question, we see no reason for your client to forward materials to the Centers for Medicare and Medicaid Services (CMS) immediately upon funding the MSA. As things currently stand, CMS only tracks current Medicare beneficiaries in its database. CMS officials do not track MSAs for individuals who are not yet enrolled in Medicare. Thus, when the MSA is funded, there is no need to send either the settlement agreement or provide CMS with annual accountings. We would suggest your client maintain accurate records in the unlikely event that CMS, when your client becomes Medicare enrolled years in the future, wishes to review those at that time. Should you have any additional questions about this or other MSA issues, please contact us.
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