(2022) MSA Reference Guide


Many lawyers and judges have reviewed the new (2022) MSA Reference Guide from the federal government.  At least one aspect of the document, however, has generated national commentary.

In this regard, claimant’s attorney and mediator Bob Burke writes to say that the January 10, 2022 CMS WCMSA Reference Guide “slams” the use of so-called Evidence-Based Medicare Set-Asides.

In his cautionary e-mail, Mr. Burke notes:

Many people are asking about Medicare’s referral to Evidence-Based Based MSA’s (EBMSA) or other MSA’s not submitted to CMS. The reference is found at [section] 4.3 of the January 10, 2022 Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide.

The new reference says, “Unless a proposed amount is submitted, reviewed, and approved using the process … prior to settlement, CMS cannot be certain that the Medicare Program’s interests are adequately protected.” The Reference Guide slams the use of EBMSA’s, [stating,] “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.”

The Reference Guide contains a dire warning that CMS will deny payment for medical services related to the workers’ comp injury until THE ENTIRE SETTLEMENT amount received by the injured worker has been exhausted, not just the MSA.  Only then will CMS resume primary obligation.  That is a stiff penalty.  A claimant could lose his or her entire net settlement because there was no CMS-approved MSA.

Remember, the law does not require any MSA to be submitted.  There are still small to moderate settlements on younger individuals that can be settled without submitting to MSA because of the review thresholds.  But in cases in which a claimant is Medicare eligible and there is a wheelchair, prothesis, stimulator, or substantial CMM [referring to continued medical management], the risk of non-submission seems to be great. The Reference Guide says that if the threshold amounts are met and the case is settled without CMS submission, and if there is an EBMSA or other estimate that is non-submitted, THERE IS A PRESUMPTION THAT MEDICARE’S INTEREST WAS NOT ADEQUATELY CONSIDERED. … That is scary for both claimant and employer or carrier.

On the defense side, Pennsylvania attorney Steve Harris has commented:

The new CMS update appears to present an overt attempt to abolish the use of “evidence-based Medicare Set Aside” (EBMSA/non-submit) allocations in the context of settlement of future workers’ compensation medical exposure.  It is not entirely clear whether this policy shift will be applied retroactively, but certainly on a prospective basis CMS has changed “policy and practice” to deny payment for medical services under non-CMS approved products such as EBMSA/non-submit allocations.

Section 4.3 of the WCMSA Reference Guide does not expressly prohibit the use of non-CMS approved-products such as EBMSA/non-submit allocations but expresses a clear unequivocal shift toward discouraging the use of such products…. The practical result of the policy shift contained in Section 4.3 of the Updated WCMSA Reference Guide will very likely result in delayed settlement of future medical exposure because claimants will insist upon use of a CMS approved-product and formal MSA approval before agreeing to resolve entitlement to future medical benefits.


“Otherwise,” Mr. Harris continues, “the claimant bears an additional burden of proving the entire settlement amount was exhausted and used for the payment of related medical care before Medicare will resume payment obligations for medical expenses related to the work injury….” Stephen R. Harris, Updated Workers’ Compensation Medicare Set Asides (WCMSA) Guide (Version 3.5) Calls into Question Non-Submit and Evidence Based MSA Allocations,