MSA Pearls: The Re-Review Process

CMS, Medicare Set-Aside Blog, Medicare Set-Asides, WCRC on January 29, 2021
Posted by Noel D. Sturtz, Client Program Manager

by Noel D. Sturtz, Client Program Manager, and Justin Boyd, Senior CMS Operations Specialist          

In our 10/14/20 blog, we highlighted a client success story of a CMS Amended Review . But what about a CMS Re-Review? Or is this just a matter of semantics?

According to the latest version of the Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide, Section 16.1, should CMS make a determination of a different amount than originally proposed, additional documentation from the claimant to the Workers’ Compensation Review Contractor (WCRC) may justify the originally submitted WCMSA amount. However, when the submitter or claimant disagrees with CMS’s decision, because the submitter has additional evidence not previously considered by CMS, the additional evidence/documentation must be dated prior to the original submission date. CMS will not consider documentation dated after the initial submission.

In an update of a previously furnished MSA, the WCRC included Oxytrol transdermal patches [for overactive bladder], resulting in a counter-higher set-aside amount. It is not uncommon for CMS to disregard requests for re-review. However, we successfully demonstrated – supported by the existing pharmacy printout – that the treating physician had since discontinued Oxytrol patches in their prescription-strength formulation, in favor of over-the-counter [OTC] Oxytrol patches. As over-the-counter medications are not covered by Medicare, the WCRC agreed with the removal of OTC Oxytrol from the MSA. This resulted in a decrease of $39,156 and thus a significant win for our client.

It is helpful to recognize that traditional re-reviews have a narrow scope and in general are for correcting obvious errors CMS made in their allocation (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred).

Additionally, CMS may consider a traditional re-review, which is based on an order issued after a hearing on the merits of the case. Please note, CMS has been fickle with respect to the orders they are willing to accept/apply to their opinions. We have seen CMS require supporting documents to an order that illustrate  a hearing on the merits of the case has occurred, such as minutes from the hearing detailing testimony and evidence presented.

Keep in mind that if the additional information does not convince the WCRC to change the originally submitted WCMSA amount, and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement.