On December 21, 2016, the Centers for Medicare & Medicaid Services (CMS) published an announcement indicating it “recently revisited the task of reviewing its process for addressing requests for CMS to “re-review” otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts.” As a result of its re-visitation on this issue, CMS announced that “in calendar year 2017, CMS expects to update its existing re-review process to address situations where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially.”
In addition, CMS announced that “it also expects its updated process to address situations where certain states rely on Utilization Review Processes (URP) to justify proposed WCMSA amounts.”
Recent History of WCMSA News
This is not the first time CMS has promised a new look at the re-review process. On February 11, 2014, CMS similarly announced its proposed expansion of the WCMSA Re-Review process, indicating that “all requests for re-review will be handled by the Workers’ Compensation Review Contractor (WCRC) and resolved within 30 business days.” Back then the announcement indicated “the WCRC will direct the request for re-review to an internal group of experts skilled to review the identified issue. The experts that perform the re-review will not be the same specialists involved in the original determination. In certain situations, a re-review may be elevated by the WCRC to a CMS Regional Office. This level of review will occur in situations such as: failure to adhere to court findings; CMS policy disputes; carrier maintains Ongoing Responsibility for Medicals for treatment that has been included in approved WCMSA, etc.”
In 2014, CMS also proposed to allow request for re-review submitted to the WCRC if “the original WCMSA was approved within the last 180 days; the case has not settled; no prior re-review request has been previously submitted for the at issue WCMSA; and, the re-review requests a change to the approved amount of 10% or $10,000 (whichever is more) for any of the following reasons:
- Submitter disagrees with how the medical records were interpreted.
- Medical records dated prior to the submission date were mistakenly omitted.
- Items or services priced in the approved set-aside amount are no longer needed or there is a change in the beneficiary’s treatment plan.
- A recommended drug should not be used because it may be harmful to the beneficiary.
- Dispute of items priced for an unrelated body part.
- Dispute of the rated age used to calculate life expectancy.”
From the very beginning of the WCMSA process, one of the consistent requests by both claimants and employer/carriers has been the inclusion of a review process that would allow both sides the opportunity to challenge Medicare’s decision on a set aside allocation. As Medicare began to require inclusion of prescription medications in WCMSAs, parties began to see an increase in their proposed MSAs rejected by CMS and instead began receiving more and more counter-highers from Medicare, sometimes asking for double and triple the amount previously submitted to CMS for approval, and oftentimes even larger than the settlement amount reached by the parties and approved by the workers compensation judge or state commission.
For 15 years, many of us involved in the MSA industry have been asking CMS for an appeals process that would allow the parties to question the reasonableness of Medicare’s counter-higher demands, and allow the parties to explain the rationality of their proposal. More than 15 years later, MSP stakeholders are still without a valid and meaningful appeals process to challenge CMS’ rejection of their proposed WCMSAs. 15 years after the WCMSA approval process started, claimants and employer/carriers are still waiting for a re-review or reconsideration process that would allow them the opportunity to examine CMS’ counter-higher, present evidence, including medical records, depositions, and live testimony that can explain the reasonableness and necessity of medical services included in the WCMSA.
Could 2017 be the year?
Could this announcement be the start to the WCMSA re-review process we have all been asking for? Could this be the first step to a real appeals process that will eventually allow for a hearing, or a neutral decision maker that can provide the litigants with CMS’ final decision so that they can then exercise their administrative and judicial appellate rights like all others negatively affected by governmental action? Stay tuned!
About Rafael Gonzalez
Rafael Gonzalez, Esq. is President and Chief Legal Counsel at Flagship Services Group, the only national Medicare Secondary Payer services provider focusing on and offering comprehensive mandatory reporting, conditional payments, and set aside allocation compliance services to the property and casualty insurance industry, including auto, no-fault, liability and work comp self-insureds, insurers, re-insurers, and third party administrators. Rafael blogs on these topics at Medicare Compliance for P&C Insurers at http://www.flagshipservicesgroup.com/blog. He can be reached at firstname.lastname@example.org or 813.967.7598.