A review nobody is required to request raised 13,884 set-asides by $229,654,328.

The Medicare set-aside is sold, everywhere it is sold, as a requirement. A workers’ compensation case settles, somebody says Medicare has to be protected, a number is carved out of the settlement and held, and the thing everyone chases is the approval letter. The approval letter is treated as the product. It is free, it comes from the government, and the entire trade is organised around getting one.

The government disagrees in writing, twice, in the document that governs the process. Section 4.2 of the Reference Guide: “Submitting a WCMSA proposed amount for review is never required.” Section 8.0: “There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review.” The review is a workload convenience the agency offers and can withdraw, and in July 2025 it withdrew part of it.

Now the number, because CMS publishes its own results. The WCMSA Fiscal Year Statistics file of November 2025 reports five years of the Workers’ Compensation Review Contractor’s output. In FY2025 the WCRC completed 13,884 recommendations against total settlements of $2,238,811,509.00. Submitters proposed $966,710,096.00 of set-aside. The contractor recommended $1,196,364,424.06. The difference is $229,654,328.06, or $16,540.93 on the average case, and CMS prints the percentage in its own column header as 24%.

Hold that against the average settlement in the same table, $161,251.19. The average proposal, $69,627.64, is 43.18% of the settlement. The average recommendation, $86,168.57, is 53.44%. So the free federal second opinion moves the average workers’ compensation settlement across the halfway line: before review the injured worker has $91,623.55 of unrestricted money, after review $75,082.62. Nothing about the injury changed. A contractor re-priced the same medical file.

The mechanism for that is a single sentence in section 9.4.4 of the guide, step 10 of the WCRC’s own review procedure: the contractor approves the submitter’s figure only where its independent calculation lands within 5% of “the submitter’s total proposed WCMSA amount.” Outside that band it substitutes its own number. There is no negotiation step and no partial credit. The entire economic content of an allocation report is whether it lands inside a 5% window, and the 24% in CMS’s column is the aggregate measure of how often it does not.

The market has already read this, which is the part nobody says out loud. Submissions peaked at 15,743 in FY2023, the same year the markup jumped from 14% to 22%, and have fallen every year since: 14,862 in FY2024 and 13,884 in FY2025, −11.81% from the peak. The markup went the other way over the same five years — $10,301.51, $10,085.38, $15,565.34, $15,151.85, $16,540.93. A free service losing volume while its price to the user rises is a priced service, and the price is the markup.

CMS then closed the cheapest door itself. Section 4.2: “Effective 17 July 2025, CMS no longer accepts or reviews WCMSA proposals with a zero-dollar ($0) allocation,” while still telling the parties to “maintain documentation to support that allocation.” Read that literally. The one case where the review was worth having — a denied or fully litigated claim where the right answer is nothing — is now a case where no approval exists at any price, and the only deliverable available is a documented file. The agency has converted a segment of its own review queue into a pure documentation market and told the parties to go write the document.

And the thresholds do the same thing by arithmetic. Section 8.1 reviews a proposal only where “the claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00” or where there is “a reasonable expectation of Medicare enrollment within 30 months” and the anticipated total is “greater than $250,000.00.” Everything under those lines settles every day with a set-aside decision nobody at CMS will ever look at. Those cases still need a number, and the number still has to be defensible years later.

Who is allowed to produce it? Section 1.0 of the same guide lists the submitters: “injured workers themselves (claimants), their attorneys, Workers’ Compensation (WC) Medicare Set-Aside Arrangement (MSA) agents or consultants, or claimants’ other appointed representatives.” That is the whole gate. No licence is named in the guide, no examination, no bond, no registration, no fee to CMS for the review, and no federal roster of approved preparers exists. The inputs are the claimant’s own medical and payment records plus the CDC life tables CMS adopted on 20 September 2025 and the fee schedules CMS already publishes.

The second force arrived on 4 April 2025, and it runs the other way. CMS’s NGHP user guide, chapter III, section 6.4.4.1: “For any settlement reached on or after April 4, 2025, NGHP RREs are required” to report the amount of any WCMSA created as part of a workers’ compensation settlement. The set-aside figure is now a mandatory field on a federal data feed whether or not anyone ever asked CMS to review it, and section 5.1 of the same guide prices a late record at “a CMP of up to $1,000, as adjusted for inflation for each calendar day of noncompliance.” So the number became visible at exactly the moment the approval became optional in practice.

The counterweight is section 4.3, and it is real. CMS says of “evidence-based” and “non-submit” products that it “treats the use of non-CMS-approved products as a potential attempt to shift financial burden” and “may at its sole discretion deny payment for medical services related to the WC injuries or illness.” That sentence is why this is a documentation trade and not an arbitrage: the work is building a file that survives the look, not avoiding the look. The second counterweight is price. There is no federal or trade dataset for what an allocation report sells for; the fee figures below come from one posted schedule whose publisher is not named on it, and they are chipped accordingly.