Starting April 1, 2020, Workers’ Compensation Medicare Set Asides (WCMSAs) that are submitted to the Centers for Medicare and Medicaid Services (CMS) will need to include a new Consent to Release form. This means the settling claimant must now sign off that they understand the WCMSA process and approve the contents of the submission.
My experience throughout my career informs me of a few opinions about this change.
I practiced law for 30 years in a mid-sized firm in New England. We provided a broad range of legal services from immigration to patents, from estates and trusts to workers’ compensation and more. When statutes or regulations were enacted, revised, or repealed we were good at tracking changes, sharing information and educating one another- with size comes resources. Larger practices can afford to keep abreast of the ever-changing and evolving world of a practicing attorney.
Nine years ago, I left my firm to join state government. I became the head of a state agency with a singular focus, workers’ compensation. I no longer had the luxury to learn from my partners what was going on in their practice areas. I had no partners, I had co-workers many of them lawyers, some judges, all focused on doing their jobs to make the system operate as it should. I was now expected to supervise individuals who were expert in EDI, state budgeting and my favorite- supervising judges who formerly decided my cases.
I am now in the private sector with the hope of putting my prior experience to good use educating all who will listen about the Medicare Set Aside (MSA) world and professional administration.
In a perfect world or better yet, a world where I was the regulator, I would do the following to ensure the language was in all agreements and more importantly what the claimant was signing was accurate:
- I would make sure the insurance community was fully up to speed on this requirement. My guess is that in most jurisdictions the insurance company or self-insured employer’s attorney drafts most, if not all, of the settlement documents. I would make sure they knew to include the revised consent language in all settlement documents beginning April 1. Carriers and self-insured are usually very good at tracking legislative and regulatory changes, and they are equally good at sharing what they know with their counsel.
- I would make sure the employee bar was fully up to speed. My experience has taught me many on this side of the bar are in small offices, and as noted earlier in a smaller firm it is a struggle to keep abreast of legislative and regulatory changes. WILG does a superior job keeping its members up to date. Not all claimant counsel are WILG members although they should be. A state-sponsored webinar or educational program specific to this topic would be in order.
- I would send a directive to the judges, commissioners, hearing officers or anyone else in the jurisdiction responsible for approving settlements. They are the “fail safe” within all state systems who ensure settlements are in the party’s best interest and the settlement documents are in proper order. A simple directive advising of this revision might be all that is necessary.
- For good measure and to ensure all of the above is done, an effort should be made to educate the regulatory community. If the regulators know CMS has implemented this revision, they can make sure all within their respective systems know as well.
As a final note, this new language may seem like no big deal to many of us. I think it is a big deal and implementing the above suggestions could save the settling injured worker community and all others involved in the settlement process from unnecessary anguish and frustration.