CMS Releases WCMSA Reference Guide, Version 2.9
Like many New Year beginnings, the Centers for Medicare and Medicaid Services (CMS) released an updated Workers' Compensation Medicare Set Aside (WCMSA) Reference Guide.
In many prior versions of this guide, CMS has stated, “Submission of a WCMSA proposal to CMS for review and approval is a recommended process. There are no statutory or regulatory provisions requiring that a WCMSA proposal be submitted to CMS for review.”
Generously, this new version of the guide plainly states, “There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS’ established policies and procedures.
In Section 4.2 of the Guide, it states, “Submitting a WCMSA proposed amount for review is never required. But WC claimants must always protect Medicare’s interests.” The guide explains that if there is NO future care anticipated, a Medicare Set Aside is not needed.
And then, so you do not get too comfortable with voluntary MSA submission, CMS states in Section 4.2 of the guide, “CMS’ voluntary, yet recommended, WCMSA amount review process is the only process that offers both Medicare beneficiaries and Workers’ Compensation entities finality, with respect to obligations for medical care required after a settlement, judgment, award, or other payment occurs. When CMS reviews and approves a proposed WCMSA amount, CMS stands behind that amount. Without CMS’ approval, Medicare may deny related medical claims, or pursue recovery for related medical claims that Medicare paid up to the full amount of the settlement, judgment, award, or other payment”. To date we are not aware of any instances whereby CMS stood behind their amount and we find it fair to challenge their amount based on CMS or Workers Compensation data mining. The current review process is void of data analysis and rife with reviewer bias and business rules.
Did we mention that in Section 8.0 CMS restates, “There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, the Agency requires that you comply with CMS’ established policies and procedures in order to obtain approval.”?
Other changes detailed in the new WCMSA guide include:
A standardization to the Development Letter and Alert templates to display the generic “Workers’ Compensation Review Contractor (WCRC)” and the WCRC customer service number “(833) 295-3773” instead of the names of individual reviewers at the CMS Regional Offices (Appendix 5).
Certain references to past memoranda on cms.gov have been removed.
The Centers for Disease Control (CDC) 2015 Life Table to be used for purposes of calculating beneficiary life expectancy, using a standard age, for MSAs. (Section 10.3)
Updates to the forecasting of spinal cord stimulators and Lyrica are provided (Sections 9.4.5 and 126.96.36.199) in which CMS offers detailed business rules for CPT coding and frequencies of care relative to implantable devices and the inclusion of Lyrica in MSAs, (this is an exception to the CMS operating rules for Part D prescription drugs) despite its off-label use for neuropathic pain, as such use is widely recognized as beneficial.
We believe that whether you choose to submit an MSA to CMS for review and approval or not, it is best having the ability to generate a Medicare Set Aside in minutes using the power of AI and dashboard analytics for measuring and monitoring of compliance. Such an approach will have the overall effect of:
Improving primary payer claims compliance and risk management involving the Medicare Secondary Payer regulation
Removing the burdensome process of CMS submission,
Allowing primary payers to avert delayed or canceled settlements, and
Improving the settlement experience and risk protection for Medicare beneficiaries
A data driven approach paired with post settlement account administration or support is a powerful posture for protecting Medicare’s interests. We will continue to keep you apprised of Medicare Secondary Payer compliance news in 2019!
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