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By Jennifer C. Jordan, Esq.
Since the very beginning of its MSP enforcement efforts around the turn of the century, CMS has avoided the regulatory process and developed MSP related policies and practices informally. By doing this, CMS has been able to make changes whenever it sees fit without being subject to public comments. CMS can update user guides and reference manuals as often as it wants to implement changes to its many MSP related activities.
On July 31, 2017, CMS released Version 2.6 of its WCMSA Reference Guide [see https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Reference-Guide-Version-2_6.pdf], which provides much needed details about the “Amended Review” process. The MSP industry first discovered the new process on July 10, 2017 in the release of Version 5.1 of the WCMSAP User Guide [https://www.cob.cms.hhs.gov/WCMSA/assets/wcmsa/userManual/WCMSAUserManual.pdf}. Although both updates were dated July 10, 2017, they were not released to the public simultaneously.
Effective 07/31/2017, submitters can submit re-review requests in cases where CMS previously provided an approval, but settlement did not occur and the medical needs changed substantially. In Section 16.0 Re-Review, CMS created a third criteria for re-review named “Amended Review”. Previously re-review was only available in the case of mathematical errors and cases in which further evidence dated prior to the submission would persuade CMS to change its recommendation. Now, a one-time request for re-review may be submitted if:
> The CMS approved WCMSA occurred between one and 48 months prior;
> The WC claim has not settled as of the date of the request;
> The projected change must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount; and
> The new amount will take effect as of the date of settlement regardless of whether CMS increases or decreases the approved amount.
To request Amended Review, in paper or through the WCMSAP, one must submit a new cover letter, all medical documentation related to the settling injury(s)/body part(s) since the previous submission date, the most recent six months of pharmacy records, a consent to release and a summary of expected future care. The original CMS Recommendation Sheet must be returned with each line item proposed to change marked to identify whether the treatment was already provided, no longer necessary or needs to reflect care not previously included. Note that CMS states that availability of a generic drug that would greatly reduce the WCMSA is not a reason to request re-review. Should the submitter fail to provide all of the above, CMS states that it will deny the request with no opportunity to supplement the request.
Another interesting change was found in the update in Section 4.1.4 Hearing on the Merits of a Case. CMS is now requiring documentation as to why disputed cases settle for less than full value. This appears to be an indication that CMS is starting to recognize that the whole purpose of compromise settlements is to not go to full hearings or through litigation. Of course it still states that CMS will only be bound when a state WC judge or other binding party approves a WC settlement after a hearing on the merits, and even then only accept those terms if Medicare’s interests are adequately addressed. It remains to be seen if such statements are overreaching given that state workers’ compensation law governs here and that such an order would be binding regardless of CMS’ opinion of the same. Furthermore, CMS maintaining the MSP exclusion to the full extent of the total settlement amount would disregard compensation for lost wages and other damages and as such, pose interesting due process considerations.
Clarification was also provided to address situations in certain states that rely on Utilization Review to justify proposed WCMSA amounts. As stated above, state law determines what must be paid by the applicable plan and despite a long history of CMS ignoring such determinations, it appears that it is starting to acknowledge such limitations. However, to get CMS to consider such limits, the submitter 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 the requested information at the time of originally submission will result in CMS completing its review without consideration of the limit, and as specifically noted in the Reference Guide update, this is not a reason for which it will grant re-review.
CMS also included an interesting new feature for Medicare beneficiaries. Medicare beneficiaries will now be able to view their WCMSA proposal in a dedicated tab on their mymedicare.gov page. It is a view-only interface but it allows them to see all documentation that was submitted on their behalf. If they have questions about the contents of the site, CMS has requested that they contact their attorney, the submitter or other representatives before contacting Medicare. It is important to note that the beneficiaries have access to far more Medicare information than any party through this website, such as explanation of benefits statements and entitlement and/or enrollment information. Negotiating access to that page may answer a lot of MSP questions that CMS otherwise makes difficult to resolve.
Some of the other changes you can find within the revised WCMSA Reference Guide can be found in the following sections:
> Further clarified expectations of Hearings on the Merits (Section 4.1.4);
> Updated defined requirements for Spinal Cord Stimulator pricing with CPT coding (Section 9.4.5);
> Corrected BCRC contact numbers from previous versions;
> Expanded state-specific statute guidelines (Section 9.4.5);
> Clarified total settlement calculations guidelines (Section 10.5.3);
> Added ICD-10 examples to the Sample Cover Letter found in the guide;
> Clarified jurisdictional verification (Section 9.4.4, Step 5);
> Clarified change of submitter requirements (Sections 9.0, 10.2, and 19.4);
> Updated administration recommendations (Section 17.1);
> Updated Off Label Medication requirements (Section 220.127.116.11).
So while the WCMSA review process has been fairly stagnant for the past few years, this Reference Guide update is an indication that CMS is finally making necessary changes to the program. The agency cannot continue to disregard state law issues and the realities of certain claim situations and recommend over-inclusive MSAs beyond a primary plan’s legal obligation to pay. What is even more encouraging is that it has implemented these changes prior to the award of the new WCRC contract, meaning that the new contractor will start fresh with all expectations in place upon initiation of the contract. The new WCRC contractor still remains an issue to watch in 2018; however, there continues to be no news as to the delay in that award.
To conclude, things are changing in the world of MSP compliance. Beyond the changes we are seeing in our daily MSP activities, the more interesting changes are those being made on the provider side. Effective October 1, 2017, CMS will finally utilize our Section 111 and WCMSA data to deny provider payment requests on the basis of the existence of MSA funds. And don’t forget that on that same day, Medicaid will gain secondary payer rights very similar to Medicare. Settling claims may become more difficult with all of these public benefit considerations competing for limited funds. But more importantly, the government exercising its rights and actually denying payments on the basis that the claimant should have the funds to make payment may make claimant considerations for terminating benefits more significant. In 2018, it will be interesting to see if the settlement dynamic changes and maybe professional administration will finally find its place in this exercise. The above noted change to Section 17.1 was the addition of one sentence in which CMS acknowledged that a claimant may administer his own or her WCMSA; however, it is “highly recommended” that professional administration be considered. Perhaps it is a harbinger of things to come.
© Copyright 2017 LexisNexis. All rights reserved. This article is excerpted in part from The Complete Guide to Medicare Secondary Payer Compliance (LexisNexis).