UPDATED WCMSA REFERENCE GUIDE EXPANDS AMENDED REVIEW TIMEFRAME TO 6 YEARS AFTER A CMS APPROVAL HAS BEEN ISSUED

CMS, Medicare Set-Asides, WCRC on November 6, 2019
Posted by Jean S. Goldstein, JD

Last week, in a pre-Halloween treat mode, CMS released a revised Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide.  The updated guide is version 3.0, dated October 10, 2019, and can be found here.  As with other versions of the guide, updates are found in Section 1.1.  Of the updates, there are two of great significance that will likely have an immediate impact on you claims:

  1. Required language for the CMS Consent to Release has been amended to include that a beneficiary understands the intent, process, and administration of WCMSAs.  This language must be included on all release forms starting April 1, 2020; and
  2. The Amended Review timeframe has been extended from 1-4 years to 1-6 years after a CMS approval has been issued.

To provide more detail about theses significant changes:

 Changes to Required Language on CMS Release Form

The Consent to Release form is the claimant’s signed authorization for CMS, its agents and/or contractors (the Workers’ Compensation Review Contractor (WCRC) specifically) to discuss a claimant’s case/medical condition with the parties identified on the authorization.  As of April 1, 2020, all forms must include language indicating that the beneficiary reviewed the WCMSA submission package and understands the WCMSA intent, submission process, and associated WCMSA administration. The section of the consent form, referencing understanding of the WCMSA, must include at least the beneficiary’s initials to indicate their validation.   The reference guide includes a template CMS release form which can be referenced for use. 

Amended Review Opportunity Expanded from Four to Six Years

CMS first introduced the amended review opportunity in 2017, allowing for an additional review of cases which have not settled, and reflect a significant change in treatment based upon new medical records/information. However, this additional review was limited to a period of 1-4 years from the date of the approval letter.  The expansion of the eligible amended review criteria is significant, allowing for the review of cases which have not settled and now fall in line with the following criteria:

  1. CMS has issued a conditional approval within at least 12, but no more than 72 months prior;
  2. A prior Amended Review has not been submitted;
  3. The case has not yet settled as of the date of the request for re-review; and
  4. Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

This is certainly a welcomed change to the Amended Review process, which should be perceived as an opportunity to settle cases which have remained unresolved.  With this expansion to six years, parties will now have a greater timeframe by which to utilize this process. While this expansion still limits the process to a subset of cases, it is nonetheless an opportunity to obtain an updated CMS approval to reflect a claimant’s current medical status.  Of note, MEDVAL’s clients that are taking advantage of this opportunity are seeing significant reductions in MSAs and are able to settle previously “un-settleable” cases.

Additional updates found within the guide include:

WCMSA Administration Updates

  • “Death of a Claimant” information has been updated and standardized with the Self Administration Toolkit, as we recently discussed here on our blog;
  • CMS’ expectations for competent administration of WCMSA funds when “frequently abused drugs” are prescribed for a claimant have been clarified, with a policy and guidance link;
  • Updates which include the newly created professional administrator role/electronic attestation enhancement in the portal.

Pricing of Hospital Fee Schedules Clarified

CMS has clarified how pricing of hospital fees is derived. CMS notes that hospital fees are priced based upon “the Diagnosis-Related groups payment for the median Major Medical Center within the appropriate fee jurisdiction for the pricing ZIP code, unless otherwise defined by law.” Of note, CMS has been utilizing this pricing for years.

Updated Life Table Link

The Life Table link has been updated to reflect use of the 2016 life table, as discussed here on our blog

It is also important to note that CMS is drawing their focus to proper WCMSA Administration. As we often discuss here on our blog, there is a continued goal on curbing the opioid epidemic.  While CMS has not changed its process by which it allocates for opioids in WCMSAs, CMS appears to be taking efforts at addressing the challenges associated with administration of WCMSAs which contain opioids or “frequently abused drugs.”  Specifically, Section 17.3, of the guide now includes language to indicate that it “expects that WCMSA funds be competently administered in accordance with all Medicare coverage guidelines, including but not limited to CMS’ Part D Drug Utilization Review (DUR) policy.”  Furthermore, CMS states that “all WCMSA administration programs should institute Drug Management Programs (DMPs) for claimants at risk for abuse or misuse of “frequently abused drugs.”   This is a clear focus on implementing additional utilization strategies to ensure that WCMSA funds are not prematurely exhausted and focusing on claimants’ well-being.

In addition, with the newly added portal enhancements of additional tracking of transactions association with professionally administered WCMSAs, CMS is emphasizing the importance of proper WCMSA administration, to ensure Medicare remains a secondary payer, until funds have been properly exhausted.  Of note, as we discussed here on our blog, CMS has held one webinar regarding the new electronic attestation enhancement available to Medicare beneficiaries, and will be holding a second webinar today, for Professional Administrators regarding the additional portal enhancement.  We will be sure to provide a recap of both webinars shortly.

We will also continue to monitor the WCRC’s implementation of these updates, and be sure to provide our readers with any developments that may impact your claims.