MSA Risk and Reward: Examining “Non-Threshold” Settlements

January 19, 2021

Here is a sneak peek into this week’s webinar topic. Register here if you haven’t already.

First, what is a “Threshold” Settlement?  

Let’s examine the guidance set forth by Medicare in its Workers’ Compensation Medicare Set-Aside Allocation (WCMSA) Reference Guide. Medicare outlines its workload review criteria in Section 8.1 and indicates it will review a proposed Workers’ Compensation Medicare Set-Aside (WCMSA) amount when the following workload review thresholds are met:

Safe Harbor?

Section 8.1 of the WCMSA Reference Guide also states that:

“These thresholds are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure Medicare pays secondary to WC in such cases.”

So if a case does not meet the submission criteria outlined by Medicare, then what?

  • If the claimant is not a Medicare beneficiary AND does not have a “reasonable expectation,” then under current Medicare guidance it seems Medicare does not have an interest in the case. Use appropriate protective language in the settlement documents to evidence the parties’ consideration of the matter.
  • There is otherwise no safe harbor where one is settling with a beneficiary for $25,000 or less or where one is settling with a claimant with a “reasonable expectation” for $250,000 or less.

We hope you can join ECS this Thursday to learn what to consider as you mull your options on “non-threshold” cases. We will discuss the costs and benefits associated with still getting a traditional MSA, using an Evidence-Based MSA, obtaining a zero allocation, contract drafting as a means of considering Medicare’s interest, and more.

To Regisiter for ECS’ upcoming January 21 webinar, click here.

Annie M. Davidson

Annie M. Davidson

Annie M. Davidson is the Vice President of Client Success for ECS. In her role, Annie works collaboratively with clients, industry partners, and leaders at all levels to identify and execute on short-term and long-term goals and consistently exceed expectations. Prior to joining ECS, Annie practiced as an insurance defense attorney in her native Minnesota where she litigated workers’ compensation and liability insurance cases, particularly those involving MSP issues. She is admitted to practice law in the State of Minnesota and the United States District Court for Minnesota, and is a graduate of William Mitchell College of Law. Annie can be reached at or at 651-262-9618.