2017: Shaping Up to Be the Year of CMS Changes

CMS, Medicare Set-Aside Blog, Medicare Set-Asides on December 22, 2016 | Posted by Jean S. Goldstein, JD

Just yesterday, CMS announced that in the coming year it will update its existing re-review process to specifically address cases where settlement has not occurred and a Claimant’s care has changed substantially since CMS issued an approval.  In the announcement, CMS also indicated that the re-review process will address situations for states that rely on Utilization Review processes to justify the exclusion of certain treatment.  Currently re-review of a CMS approved Medicare Set Aside (MSA) is very limited, and to two specific situations:

  1. When CMS’ determination contains obvious mistakes, such as a mathematical error; or
  2. When there is additional evidence not previously considered by CMS, which is dated prior to the submission date of the original CMS submission, and which warrants a change in CMS’ determination.

At present, there is no formal process to address the multitude of cases that do not settle after CMS has issued a recommended MSA.  For those cases, we are often contacted when settlement is once again being contemplated years after the CMS approval has been issued.  The question then, at that time is what changes to Claimant’s medical condition and status must be taken into account to ensure Medicare’s interests are protected.  Well, this most current CMS announcement may provide the basis to that answer for our clients who chose to utilize CMS’ voluntary submission program.

You may recall that in 2014, CMS also discussed expanding the re-review process, to include a broader array of categories and reasons.  The proposed re-review expansion at that time was to be limited to situations where: the WCMSA approval had been approved in the last 180 days, for a case that had not settled, for which no prior re-review request had been submitted, and the re-review requested a change to the approved amount equivalent to the greater of either 10% of the approval or $10,000. The expanded re-review proposed reasons in 2014 were to include, cases where:

  • The submitter disagreed with how the medical records were interpreted;
  • Items or services priced in the approved set-aside amount were no longer needed or there was a change in the beneficiary’s treatment plan;
  • A recommended drug was not to be used because it may prove harmful to the beneficiary;
  • There was a dispute of items priced for an unrelated body part; or
  • There was a dispute of the rated age used to calculate life expectancy.

It is possible that the expanded formal re-review process will revive some of the previously discussed categories and reasons.  We are also very intrigued about CMS specifically including verbiage about the Utilization Review (UR) process. While, CMS often requires a Court Order or similar state binding document to provide a basis for exclusion of certain treatment, CMS has not historically deferred to URs.  It will be interesting to see how CMS intends to incorporate this into a formal re-review process, as there are various jurisdictions that base exclusion of treatment on UR determinations.  One thing is for sure: an expanded re-review process has been needed for quite some time, and we are excited to see CMS taking the appropriate steps that so many of us in the industry have been advocating for, for years.

Further alerts regarding the proposed expansion will be announced on CMS’ WCMSA What’s New page on CMS.gov, as well here on our blog.  Stay tuned–as 2017 certainly promises to be a year of change for the CMS WCMSA review process.