On March 29, 2013, CMS issued its first ever WCMSA Reference Guide. To view and download a copy of the guide, please click here.
At the beginning of this 88 page guide, CMS states that the guide was written to “. . . help you understand CMS’ Workers’ Compensation Medicare Set-Aside Arrangement amount approval process and to serve as a reference for those electing to submit such proposals to CMS for approval.”
The guide appears to reflect information compiled from previously issued WCMSA Regional Office Memorandums issued by CMS, and information provided on the CMS WCMSA website. Therefore, the vast majority of the information contained within the guide is not new and rather is more of a compilation of previously issued guidance into one document.
However, PMSI has noted a few minor interesting items included within the WCMSA Reference guide:
WCMSA Portal: CMS has included information relevant to the online WCMSAP online portal. This portal is not new and has existed since November of 2011; however, it appears to be the first time in which CMS has issued formal guidance around the portal since it was initially introduced (see section 9.1 for more information on the WCMSA portal).
List of WCRC Review Reference Tools: CMS has provided a list of review reference tools used by the WCRC (the WCRC is instructed to utilize these tools when reviewing a proposed WCMSA). While a list of the reference tools is helpful, one of the items that would have been very beneficial to have been included within this guide would be an updated set of Operating Rules (see top of page 44). The last time these Operating Rules were updated was April 22, 2010, and they were published under the prior WCRC contractor. Therefore, an updated set of Operating Rules would provide insight as to how the new WCRC contractor might review WCMSAs differently than the prior contractor. This would be great assistance to submitters of WCMSAs currently trying to track the allocating trends of the new contractor.
WCMSAs not meeting CMS Review Threshold: The guide states that “. . . if an individual’s WC settlement does not meet the current workload review thresholds, CMS will not issue responses indicating that the review criteria have not been met.” In the past, CMS has verbally stated that they will no longer issue “Does Not Meet Threshold” (DNMT) letters; however, in PMSI’s experience CMS has continued to issue these letters nonetheless. Regardless, CMS does still maintain the following: “These thresholds are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure that Medicare pays secondary to WC in such cases” (see section 8.1).
Independent Medical Evaluations (IMEs): The guide also provides further insight as to CMS’ view of IME records. The guide states that an IME opinion may be sufficient under certain circumstances, e.g., the claimant has not received treatment in several years and there is no primary care physician (see section 10.1.7). However, under the Do Not Submit section the guide states that IME evaluations are not treatment records, but they may be appropriate to determine future treatment requirements under certain circumstances; however they are not appropriate as medical records. This information regarding IME opinions is not new either; however, it does provide further clarification regarding CMS’ view/deference to IME opinions when reviewing proposed WCMSA allocations.
In summary, the WCMSA Reference Guide is a great reference tool which combines previously issued guidance from CMS into one document; however, the guide does not seem to provide any new insight into the current WCMSA process. PMSI is hopeful that CMS will continue to revise the WCMSA Reference Guide as updates from CMS arise. Within these future updates, PMSI hopes to see a more comprehensive set of WCRC Operating Rules as well as adding an appeals process to WCMSA submissions to create greater visibility and fairness into the WCMSA approval process.