New Bill Would Allow for Appeals in Medicare Set Asides

28 Aug, 2019 Bruce Burk


Tampa, FL ( - HR 4161 is a bill that seeks to add an appellate process for decisions made about Medicare Setasides regarding workers’ compensation settlements.  It was filed in the House of Representatives on August 2, 2019 by Representative Mike Thompson (D), of California.

A MSA is a pool of money that is set aside as part of a workers’ compensation settlement that is meant to protect Medicare’s interest. It was put in place to prevent people from settling injury claims and then shifting the burden to pay for them onto Medicare. Injured parties can seek approval for the MSA from the Centers for Medicare and Medicaid Services, the federal agency that oversees Medicare. However, the proposed legislation makes it clear that submission to CMS remains voluntary.

If Medicare has already made payments for a compensable workers’ compensation claim, a conditional payment letter may be issued by CMS that may have to be satisfied in order for the settlement to go forward.

The bill is entitled ‘Coordination Of Medicare Payments and Worker’s Compensation Act’ or the ‘COMP Act.’ The bill would add a new provision

A party to a workers' compensation settlement agreement that is dissatisfied with a determination under paragraph (3)(B), upon filing a request for reconsideration with the Secretary not later than 60 days after the date of notice of such determination, shall be entitled to—

                (i) reconsideration of the determination by the Secretary (with respect to such determination);

                (ii) a hearing before an administrative law judge thereon after such reconsideration; and

                (iii) judicial review of the Secretary's final determination after such hearing.

This bill, if it were ever to become law, has the potential to have a major impact on workers’ compensation settlements. First, it has the potential to create a case within a case. Normally, a good amount of time passes between when an MSA is done and it is approved by CMS. During that period, the settlement can be held up because it is sometimes contingent on the approval of CMS. With this bill, there could be a separate hearing and a separate judge to hear disputes regarding the MSA, which could cause further delay.

However, there are potential benefits to being able to have issues related to MSAs heard by a judge. MSAs can get somewhat complicated when you are dealing with cases involving apportionment. Apportionment is when you have a case like a compensable back injury when the claimant already has a personal back injury, such as the result of a motor vehicle accident. In this situation, the carrier may have the right to apportion the amount of medical exposure based on the percentage caused by the industrial accident. In these kinds of cases, it can be argued that the MSA should be customized to reflect the fact that only a certain portion of the future medical needs to be allocated within the MSA for the workers’ compensation claim.

The same could be said about cases where you have an exacerbation of a pre-existing condition and a return to baseline. If you have medical testimony that the industrial accident will only be the cause of the need for treatment up to a certain date, then it can be argued that the MSA should reflect that fact. If this bill ever becomes law, it would enable parties to appeal findings related to MSAs in more complicated situations like these.


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    About The Author

    • Bruce Burk

      Bruce Burk is an experienced workers' compensation defense attorney located in South Florida. He has also worked in civil litigation and criminal defense, handling more than 40 trials, both jury and non-jury. Burk received his law degree from the University of South Carolina and his bachelor's degree from Palm Beach Atlantic University.

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