MARC Coalition Warns CMS: Medicare Set-Aside Arrangement are Ripe for Opioid Abuse


Contact:  Andrew Rosenberg (, (202) 247-6301

The Centers for Medicare and Medicaid Services (CMS) should take immediate steps to curtail the practice of recommending lifetime use of addictive pain medications for individuals who set up Workers’ Compensation Medicare Set-Aside Arrangements (MSAs), according to a recent letter from the Medicare Advocacy Recovery Coalition (MARC). 

MSAs are a special kind of trust that are set up to reimburse future medical expenses following the resolution of a personal injury lawsuit. Since Medicare is only a “secondary” payer, MSAs are created to ensure that settlement funds are allocated towards future medical expenses before Medicare picks up the tab for the rest. An MSA is a trust-like arrangement that is set up to hold settlement proceeds, with contributions based on an assessment of future medical needs which can be modified and approved by CMS.

As MARC Chairman Greg McKenna explains in the Coalition’s letter, “following the submission of MSAs to CMS by beneficiaries or those funding beneficiary care, the Agency often proposes back modifications to care plans. In many cases a beneficiary may need some pain medications, such as an opioid – which if used beyond their medically necessary requirements can lead to addiction and other abuse.” The letter continues by explaining that “unfortunately, the routine and consistent practice of CMS is to require MSA payment for lifetime use of highly potent and frequently abused drugs. These CMS recommendations are far beyond any evidenced-based guideline recommendations, and could cause harm to the beneficiaries involved if they misconstrue the CMS recommendations as federally sanctioned treatment guidelines or requirements.”

While CMS has repeatedly been advised of the issue, the Agency has taken no action to remedy the inappropriate recommendations in its MSA process other than to state that the Agency itself does not view the MSA as a treatment requirement or guideline. To remedy these concerns, MARC asks that CMS clarify that it will adopt the same maximum opioid standards in MSAs that it uses for evaluation of prescription drug plans and Medicare beneficiaries in the Part D program. This includes implementing the 50 morphine milligram equivalent (MME) standard — as referenced in the Center for Disease Control (CDC) Guideline for Prescribing Opioids for Chronic Pain — as the threshold to identify beneficiaries who appear to be at high risk due to their opioid use.

“MARC applauds CMS’ initiatives to address the nation’s opioid epidemic,” said McKenna. “But CMS must ensure that frequently abused drugs are appropriately managed so that Medicare beneficiaries at risk of abuse and addiction cannot access them through the Part D program. Given that the 50 MME standard will be the maximum amount of opioid that a beneficiary would be allowed to obtain through the Part D program, the same limit that should be used in MSAs.”

MARC’s full comment letter to CMS is available here.

About MARC

When a beneficiary is injured and another party is supposed to cover their healthcare expenses – such as in a workers compensation claim – Medicare’s legal responsibility to pay is “secondary.” Unfortunately, the current Medicare Secondary Payer (MSP) policy is convoluted and confusing, creating problems and inefficiencies for beneficiaries, settling parties and taxpayers alike. That’s why MARC exists: to support commonsense reforms to fix this broken system. MARC’s membership represents virtually every sector of the MSP regulated community including attorneys, brokers, insureds, insurers, trade associations, self-insureds and third-party administrators. For more information on MARC, please visit

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