CMS Wins Again

Medicare Set-Aside Blog on February 16, 2010
Posted by

Hi Jen,


I have been preparing and submitting MSA proposals to CMS for about 6 very long years.  I believe CMS has finally beaten me down to the point that I have given up.  However, I still must deal with a recent fiasco.  I recently submitted a proposal, idiotically assuming that the actual retail price at the pharmacy actually used by the claimant would be more conservative than the average wholesale price under the Red Book.  When the set-aside came back dramatically higher, I reviewed the NDC codes and the price suggested by CMS. 


I learned that the drug in question, 10mg of Ramipril, has 28 different NDC codes, with prices ranging from $.26 per pill to $5.36 per pill.  I suppose I should be pleased that CMS came back with a price of $1.89 per pill on this case — but only $.33 per pill on another case I had — even though the claimants in both cases had previously obtained Ramipril prescriptions under multiple NDC codes, including the $.33 per pill code.


How do you handle this random act of violence???


Thanks for your help and your excellent blog.

Attorney in FL

Jen Responds:

Dear Attorney in FL:

That would be a funny story if it didn’t have such a tragic ending. Here is what we would do:

1. Not submit to CMS in the first place. Is the cost really worth the benefit?

2. If submitted and countered ask for a reconsideration by the regional office (good chance of that happening on this type of case)

3. If denied contact MSP central and ask for reconsideration

4. If denied, appeal to the Office of the General Counsel

5. If denied, sue in Federal Court


Let us know if you need help with Option 5. We are looking for motivated clients with damages to challenge CMS and their arbitrary acts.  Sorry to hear of your misfortune. Hopefully your story will help other readers of our blog.