Zero MSAs – What’s All the Chatter About?

CMS, Medicare Set-Aside Blog, Medicare Set-Asides, MSP News on October 31, 2016
Posted by Jean S. Goldstein, JD, CMSP

Over the last several weeks, the MSA community has been astir with all of the forthcoming CMS changes — from a new CMS review contractor, to possible threshold changes, to the expansion of review for liability MSAs, and now, to the latest buzz about how CMS reviews and approves zero MSAs for denied claims.  For many in the MSA industry, this latest news has sparked concern.  Historically, for many MSA submitters, obtaining a zero approved MSA was not a difficult process.  However, during a recent internal quality audit CMS identified that an internal rule had not been interpreted correctly as related to denied and zero allocations.  As a result, many vendors in the MSA community began receiving development requests or counter-highers on submitted zero MSAs.  The Workers’ Compensation Review Contractor (WCRC) advised MEDVAL that the internal CMS rule specifically identifies the information required to support a denied or zero MSA, which includes the following items:

  • All draft or final settlement agreement from each carrier, or a statement that there are none, if in fact none exist;
  • All court rulings, including, but not limited to rulings regarding the compensability of the claims;
  • If no court rulings exist regarding the compensability of the claim, provide treatment records that demonstrate/indicate that no further treatment for the alleged industrial injury will be required.

Many in the MSA community are troubled over this internal rule as their concern regarding counters which compromise future settlements escalates.  In addition, the current reference guide is not entirely clear with respect to the information required for a zero/denied MSA to be approved by CMS.  The reference guide states, “[i]f the records for denied cases reflect a payment, medical and treatment records may be required to complete the review process.”  (Emphasis added.)  To many in the industry, this is apparently new information.  Review of an MSA is a voluntary process, but as per the reference guide, “[i]f you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS’ established policies and procedures.”

The internal rule which dictates the manner by which CMS reviews denied or zero MSAs is not news to MEDVAL.  MEDVAL has always provided the information as required by CMS’ internal rule.  Providing medical records with the submission of a denied or zero MSA is common practice, whether or not payments have been made on a claim.  In fact, CMS’ scrutinized review of zero MSA cases has always been a concern, particularly on cases where medical payments have been made in jurisdictions which require medical payments during an investigatory period while compensability of a case is being determined.  For these particular cases, the question has always been whether payments were made after the denial was issued.  It is most important to note that review of each MSA is done on a case-by-case basis.  While CMS may generally request medical treatment records, providing these records for every denied or zero MSA will not necessarily result in a counter-higher.  The WCRC has been inundated with concerns that each zero/denied MSA will result in a counter-higher absent a supporting court order – this is simply not the case.  In light of CMS’ recent concerns about application of their internal rule, we suggest the following whenever possible, when choosing to submit an MSA to CMS through the voluntary review process:

  • Provide all available medical treatment records for review prior to submission of an MSA;
    • If medical records are not available, we suggest obtaining a statement from the treating physician indicating the last date of treatment, and whether further treatment will be required; this includes prescription treatment information.
  • Upon CMS submission, provide CMS with a clear statement on the carrier or carrier’s attorney’s letterhead regarding the basis of the denial, and specifically addressing whether there are draft or final settlement agreements, and court rulings.  The basis of a denial may vary from jurisdiction to jurisdiction, and for this reason we suggest contacting us to address what additional documentation may support the denial and may speed up the review process.

In summary, review of MSAs submitted to CMS is done on a case-by-case basis, but when choosing to submit to CMS, any requests for additional documentation must be addressed before CMS will complete their review.  Denied or zero MSAs are still being considered without a court order, and not every submitted zero/denied MSA will result in a counter-higher.  However, having a thorough legal and medical understanding and analysis of your claim will put you one step closer to obtaining a favorable result.  Contact us at with any questions or to further discuss our recommendations for zero and denied MSAs.