On June 8, 2012, CMS issued a Decision Memo regarding the removal of coverage for TENS for CLBP.
The CMS Decision Memo defined CLBP as “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.” The Decision Memo also stated that TENS is not reasonable and necessary for the treatment of CLBP, in accordance with the provisions of section 1862(a)(1)(A) of the Social Security Act.
Subsequent to its Decision Memo, CMS issued another memorandum on August 1, 2012 delineating how its Decision Memo on TENS Coverage for CLBP would affect the WCMSA proposal review process:
- If a workers’ compensation case was settled prior to June 8, 2012 and the WCMSA includes TENS for CLBP, CMS will consider funds spent for the TENS as being an appropriate expenditure of funds as part of the WCMSA.
- If a workers’ compensation case was not settled prior to June 8, 2012 and the WCMSA includes TENS for CLBP, CMS will re-review the case and remove the TENS. (Regional Offices shall obtain from submitters requests for a case re-review, along with a signed statement indicating a settlement had not occurred prior to June 8, 2012.)
Once CMS performs a re-review of the case to remove the TENS, claimants may not use funds from their WCMSA to pay for the non-covered TENS for CLBP, as doing so would constitute an inappropriate expenditure of WCMSA funds.
PMSI is in continued support of CMS’ efforts to sync its policies for WCMSAs with Medicare guidelines and opinions. This swift effort of CMS to publish this memorandum regarding the application of the Decision Memo to the WCMSA process is certainly supported and will assist in reducing allocations.
PMSI recommends that any case which has not settled as of June 8, 2012 and includes TENS for the treatment of CLBP is evaluated prior to proceeding with settlement in order to determine whether a request for re-review by CMS is appropriate (if previously reviewed) or if a revised MSA allocation is needed.