Question from the NAMSAP listserv:

Can someone please tell me, or site reference guide, if CMS requires/recommends professional custodial administration for clients with accepted mild traumatic brain injury---thank you

Answer from a "professional" administrator

Professional Administration is required if the injured worker has been declared incompetent by the court.

Otherwise, it is highly recommended on brain injury cases.

That answer is both wrong and could have the appearance of being just a little self-serving.

Professional administration is never "required" on any case, liability, workers' compensation or otherwise. All that is required is contained in the law. However, if a client wishes to adhere to CMS' published memorandum, here is what CMS says on the matter as it applies to workers' compensation.

From Q2/A2 of the 10-15-04 memo:

Q2. Self-administration of a WC Medicare Set-aside Arrangement -- If an individual has a designated representative payee for Social Security purposes pursuant to 20 C.F.R. 404.2010 and 404.2015 (e.g., because the individual is legally incompetent, mentally incapable of managing benefit payments, etc.), has an appointed guardian/conservator, or has otherwise been declared incompetent by a court, may that individual self-administer his/her Medicare set-aside arrangement?

A2. WC Medicare Set-aside Arrangements must be administered by a competent administrator (emphasis added) (the representative payee, a professional administrator, etc.). Moreover, when an individual does (in fact) have a designated representative payee, appointed guardian/conservator, or has otherwise been declared incompetent by a court; the settling parties must include that information in their Medicare set-aside arrangement proposal to CMS.

There are a wide range of competent administrators other than firms that offer professional MSA administration. From a practical perspective, I think firms that offer professional administration are best suited to handle such cases but because of the associated expense, I would hesitate to recommend it to clients under the theory it is required by CMS.

MEDVAL 1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

Post-Settlement Administration

Pharmacy Benefit Management