The Centers for Medicare & Medicaid Services (CMS) has followed through on their previously announced intent to expand their Medicare Set-Aside (MSA) Re-Review process. For our prior blog on CMS’ January announcement that it intended to expand its re-review process in 2017, click here.

For those that need a refresher on CMS’ MSA Re-Review process, where an MSA is submitted to CMS and the submitter disagrees with CMS’ determination or believes an error has been made, generally there is no formal appeal process to have CMS re-consider the MSA. However, an administrative Re-Review process is available which involves review by the CMS Regional Office. If still unsatisfied with CMS’ determination after a Re-Review, the submitter is without further due process or review at a higher level and CMS’ determination is final.

Since CMS’ MSA review process has been in place, the Re-Review process has been somewhat limited. For example, historically, where an MSA determination is issued, and the parties do not settle, and medical circumstances for the claimant have drastically changed, CMS would not re-review the MSA, even if doing so would result in an increased MSA, which would further protect Medicare’s interests. Additionally, CMS would not review any documentation which post-dated the MSA determination. CMS clearly receives an abundance of MSAs for review each year and has workload limitations and therefore could not re-review all previously issued determinations.

The changes that have now been implemented with an expanded Re-Review process have fixed this issue and are a welcome change to the workers’ compensation industry!

What Changes Have Been Made to the Re-Review Process (Now Referred to as “Amended Review”)?

CMS has provided their changes to the Re-Review process in their updated Workers’ Compensation Medicare Set-Aside Portal User Guide, version 5.1, which can be found here. Section 12.4.3 provides the changes that have been made to the expanded Re-Review process. In summary, the changes to the Re-Review process are the following:

  • The MSA must have been originally submitted between one and four years from the date the re-review is submitted;
  • The re-review request cannot have had a previous request for an Amended Review; and
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

A submitter may only submit an Amended Review once per case. The submitter must attach medical documentation which supports the MSA proposal resulting in a 10% or $10,000 change. Obviously, this is the one circumstance under which CMS will now review medical and/or legal documentation which post-dates CMS’ original determination. The WCMSAP User Guide provides the following example:

An approved Medicare Set-Aside (MSA) is $80,000. Since $10,000 is greater than $8,000 (which is 10% of the approved MSA), then $10,000 will be used in calculation.

The New Proposed MSA Amount is $88,000. Since $8,000 ($88,000- $80,000) is at least a 10% change, this amount is eligible for an amended review.

What Has Stayed the Same with the Re-Review Process? 

For recently submitted MSAs, the following options for Re-Review are still available and have not changed:

  • You believe CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize Medical records already submitted showing a surgery, priced by CMS, that has already occurred).
  • You believe you have additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal which warrants a change in CMS’ determination.

Franco Signor Commentary: We applaud this update to the Re-Review process by CMS and are happy to see that CMS will now consider medical and/or legal documentation which post-dates the CMS determination and medical circumstances have changed such that it will affect the MSA amount by at least 10% or $10,000. The only limiting factor is that the determination must have originally been submitted between 1 and 4 years prior. While it is understandable that at least a year should have passed for CMS to consider change in medical circumstances, not re-reviewing MSAs more than 4 years old will be limiting to some “old dog” cases which have not settled.

We look forward to seeing how this Amended Review process plays out and assists those who have undergone CMS’ voluntary review process and medical circumstances have changed. There are a few other changes to watch for which we will be monitoring closely: 1) The new Workers’ Compensation Review Contractor (WCRC) award (which was supposed to be announced June 30th, but has not yet been announced. We anticipate that the current contractor that is currently reviewing WCMSAs will be again awarded the work). 2) As we have previously blogged (click here for our last blog on this topic), the new WCRC will have the additional task of reviewing LMSAs and NFMSAs as early as July 1, 2018. Will CMS apply the same Re-Review parameters to LMSAs and NFMSAs? Stay tuned.

 

Heather Schwartz Sanderson
Chief Legal Officer


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