Implications of CMS’s Revised Consent to Release Form

As of April 1, 2020, submissions of Workers’ Compensation Medicare Set-Asides (MSAs) must include CMS’s Revised Consent to Release form. The language indicates that the need and process for the MSA have been explained to the applicant and that the applicant has approved the contents of the MSA submission, including the amount of funds to be set aside.
Specifically, the revised language is as follows:

Further, I have had the Workers’ Compensation Medicare Set-Aside Arrangement need and process explained to me, and I approve of the contents of the submission.
Beneficiary Initials: ____________

In the past, Insurance Carriers (or the MSA Vendor they hired) have often requested that the Consent to Release form to be signed before the MSA Allocation was provided to the injured worker or his/her attorney. Carriers would then submit the MSA Allocation to CMS without having the injured worker or his/her attorney review it. This would often result in injured workers’ and their attorneys being surprised at the allocation amount and questioning why treatment wasn’t included in the MSA Allocation. The new Consent to Release form will eliminate this problem if the language of the form is followed.

However, the new language also places an affirmative obligation on the injured worker to not only agree to the submission, but to understand and approve the process and the contents of the submission. Injured workers’ attorneys should carefully review the entire submission package before having their clients sign the CMS release form. CMS not only requires that the MSA Allocation Report be submitted but also requires submission of the billing statement from the carrier showing the last two years of medical bills that were paid, medical records to coincide with every billing line item, two years of pharmacy records, treatment plan and rated age information.

By reviewing all of the MSA submission documents, attorneys will be better able to evaluate whether the amount of the MSA allocation is a fair representation of the injured worker’s future medical costs. Denied treatment or treatment not covered by Medicare is not included in the MSA Allocation and separate settlement funds to cover that treatment must be negotiated. The new Consent to Release is an important tool for an attorney to ensure that their clients receive a fair settlement of their future medical benefits.

To disregard the implications of the language of the consent form could open up the applicant and counsel to a claim of fraud. The MSA allocation is meant to be a fair representation of future medical costs, so simply having your client sign it without ensuring that the allocation meets this threshold may very well constitute fraud. Should your client encounter an issue with their future Medicare coverage they may very well seek to hold their counsel accountable.
A thorough and complete understanding by both counsel and the applicant of the actual future medical costs is paramount before the consent to release form is signed. In this instance knowledge is power. If you have questions about the new Consent to Release form or how to review the MSA Allocation to best represent your clients’ interests during settlement, we are happy to help.