The Centers for Medicare & Medicaid Services (CMS) issued an updated Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide on July 31st, although the Reference Guide is dated July 10, 2017. There are several important changes to note within this new Reference Guide (the new Guide can be located here). We have listed the more noteworthy changes first:

Updated Amended Review Policy (Section 16.0):

We recently blogged as well as conducted a webinar on CMS’ recently announced Amended Review process (blog link can be found here, and recorded webinar link can be found here). As a brief refresher, CMS will now allow for Amended Reviews previously approved MSA determinations in certain scenarios that have been well covered in prior communications.  The guidance for Amended Reviews has been expounded upon further in this updated Reference Guide.

The NEW Reference Guide states that Amended Reviews are only available for cases that have not yet settled as of the date of the Re-Review. Further, it provides that where an Amended Review is approved by CMS, the new approved amount will take effect on the date of the settlement, regardless of whether the amount increased or decreased. These additional points are noteworthy in that a claimant will not be allowed to reduce their WCMSA post settlement. Further, submitters of Amended Reviews should take care that Amended MSAs are submitted with all “ducks in a row” as CMS has now made it clear that an Amended Review can result in an increased MSA amount.  Franco Signor covered both critical issues in depth during our Webinar and applaud the clarity that Medicare has provided on these two items. 

New Change of Submitter Requirements (Sections 9.0, 10.2, and 19.4):

As we discussed in our Webinar earlier this week, CMS has clarified how parties may change submitters in writing in this updated Reference Guide. The Reference Guide now provides that to change submitters, CMS will require a written release from the original submitter and a new signed Consent to Release form authorizing the new submitter.  This clarity is impactful on the Amended Reviews conducted by old MSA vendors where the client no longer wishes to use their services to handle future MSA matters.

Documentation Required for Zero WCMSA Allocations (Section 4.1.4):

CMS appears to have modified the language of this section to address Zero WCMSA allocations based upon denial of liability. The new language that was added states: “Because the CMS prices based upon what is claimed, released, or released in effect, the CMS must have documentation as to why disputed cases settle future medical costs for less than the recommended pricing. As a result, when a state WC judge or other binding party approves a WC settlement after a hearing on the merits, Medicare generally will accept the terms of the settlement, unless the settlement does not adequately address Medicare’s interests. This shall include all denied liability cases, whether in part or in full.”

CMS states that it must now have documentation as to why a claim was disputed. The documentation that CMS will require is not defined; however, as this language is listed within the Hearing on the Merits section, it appears that CMS will require a court order issued after a hearing on the merits of the case to approve a Zero WCMSA allocation based upon denial of liability.  Franco Signor has previously blogged here on coming Zero Dollar WCMSA Allocation review changes and will continue to monitor the impact of this new language on submitting Zero Dollar MSAs in the future.

Expanded State-Specific Statute Guidelines (Section 9.4.5):

This section has been reflected to state that CMS will now honor state specific statutes which address the limits of future treatment regarding the length or nature of future treatment. The new language states: “Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate. For those states where treatment is varied by some type of state-authorized utilization review board, the submitter shall include the alternative treatment plan showing what treatment has replaced the treatment in question from the beneficiary’s treating physician for those items deemed unnecessary by the utilization review board. Failure to include these items initially will result in pricing at the full life expectancy of the beneficiary or the original value of treatment without regard to the state utilization review board recommendation.”

CMS generally did not previously honor statutes which limited future treatment in this manner. An example of where this would apply would be Georgia’s cap on future medical to 400 weeks for non-catastrophic cases where the date of injury is after July 1, 2013. It seems that CMS will now honor statutes such as these; however, as indicated by the language in the Reference Guide, CMS will require a court order or finding by the court/workers’ compensation commission that the claim does not meet the exemptions under the state law. In other words, simply providing a copy of the state law and alleging that the WCMSA/claim meets the criteria under the state law will not be enough. If parties want to obtain CMS approval, an evidentiary finding by the court or workers’ compensation commission will be required.  Franco Signor has been a proponent of honoring state statutes in WCMSA calculations and we see this recognition from CMS as a positive step in the right direction for the WCMSA Review Process.

Other less noteworthy updates to the WCMSA Reference Guide are the following:

Updated Administration Recommendations (Section 17.1); Total Settlement Calculations Guidelines (Section 10.5.3); Updated defined requirements for Spinal Cord Stimulator pricing (Section 9.4.5); Corrected BCRC contact numbers from previous versions; Added ICD-10 examples to Sample Cover Letter; Clarified jurisdictional verification (Section 9.4.4, Step 5); Added required resubmission requirements (Section 16.1); Added MyMedicare.gov link (Section 17.6); and Updated Off Label Medication requirements (Section 9.4.6.2).

Please contact us at engage@francosignor.com with any questions on the updated WCMSA Reference Guide.


2 responses to “CMS Issues Updated WCMSA Reference Guide Version 2.6: Multiple Important Updates to the WCMSA Submission Process”

  1. Paul F. Toland says:

    Thank you for this update! On the issue of Zero Dollar MSA Allocations in Denied Workers’ Comp claims: We typically settle many of these comp claims Before any Hearing takes place, because we want to avoid the time/expense/uncertainty of a Hearing. Thus, by definition, we do Not have any “Court Order issued after a Hearing on the merits,” because no “Hearing on the Merits” has ever taken place. Without any such “Hearing on the Merits,” are you saying that CMS will Never approve a Zero Dollar Allocation in a denied comp claim? Or, are there certain circumstances in which CMS would approve a Zero Dollar Allocation in a denied claim that has never gone to Hearing? If so, what are those circumstances? Thank you! Paul F. Toland

    • mm Heather Sanderson says:

      Paul, thank you for the comment and question. We understand and agree that most often a workers’ compensation claim would not go to a full hearing on the merits for various reasons. CMS’ most recent Reference Guide seemed to indicate that it would now be requiring a court order issued after a hearing on the merits to approve a zero allocation, although we are keeping an eye on this trend. It is important to keep in mind that the CMS approval process is voluntary, and therefore parties may want to consider a non-submitted zero allocation and/or release language which speaks to the consideration of Medicare’s interests in lieu of the CMS approval process.

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