Another Year Without Appeal Rights in Workers Compensation Medicare Set Asides

Insurance LawFrom the very beginning of the Workers’ Compensation Medicare Set-Aside (WCMSA) process, one of the consistent requests by both claimants and employer/carriers has been the inclusion of a review process that would allow both sides the opportunity to challenge Medicare’s decision on a set aside allocation. As Medicare began to require inclusion of prescription medications in WCMSAs, parties began to see their MSAs rejected by CMS more frequently and instead began receiving more and more counter-higher demands from Medicare, sometimes asking for double and triple the amount previously submitted to CMS for approval, and oftentimes even larger than the settlement amount reached by the parties and approved by the workers compensation judge or state commission.

For more than ten years, many of us involved in the MSA industry have been asking CMS for an appeals process that would allow the parties to question the reasonableness of Medicare’s counter-higher demands, and allow the parties to explain the rationality of their proposal. As a result, when the Centers for Medicare and Medicaid Services (CMS) announced its proposed expansion of the WCMSA Re-Review process on February 11, 2014, indicating that all requests for re-review would be handled by the Workers’ Compensation Review Contractor (WCRC) and resolved within 30 business days, I, along with many of our industry professionals, thought we were finally going to have an appeals process in the WCMSA program.

The announcement indicated that “the WCRC would direct the request for re-review to an internal group of experts skilled to review the identified issue. The experts that perform the re-review would not be the same specialists involved in the original determination. In certain situations, a re-review may be elevated by the WCRC to a CMS Regional Office. This level of review would occur in situations such as: failure to adhere to court findings; CMS policy disputes; carrier maintains Ongoing Responsibility for Medicals for treatment that has been included in approved WCMSA, etc.”

The announcement indicated that “CMS proposed to keep the limited current process, allowing for re-review requests to the WCRC at any time if a mathematical error was identified in the approved set-aside amount, or if the original submission included case records for another beneficiary.” In addition, CMS proposed to allow request for re-review submitted to the WCRC if “the original WCMSA was approved within the last 180 days; the case had not settled; no prior re-review request had been previously submitted for the at issue WCMSA; and, the re-review requested a change to the approved amount of 10% or $10,000 (whichever is more) for any of the following reasons:

  • Submitter disagreed with how the medical records were interpreted.
  • Medical records dated prior to the submission date were mistakenly omitted.
  • Items or services priced in the approved set-aside amount were no longer needed or there was a change in the beneficiary’s treatment plan.
  • A recommended drug should not have been used because it may be harmful to the beneficiary.
  • Dispute of items priced for an unrelated body part.
  • Dispute of the rated age used to calculate life expectancy.”

CMS asked for comments on all aspects of its proposal, “including comments on the timeframe, threshold and reasons for granting a re-review.” Comments on each of these were received by the March 31, 2014 deadline. However, although CMS indicated it would “schedule a Town Hall Teleconference and post implementation dates and detailed instructions on its website,” almost a year later, MSP stakeholders are still without a valid and meaningful appeals process to challenge CMS’ rejection of their proposed WCMSAs. Almost 14 years after the WCMSA approval process started, claimants and employer/carriers in work comp cases are still waiting for a re-review or reconsideration process that would allow them the opportunity to be heard, to disagree with and examine CMS’ counter-higher demands, present evidence, including medical records, depositions, and live testimony from medical professionals that can explain the reasonableness of medical services included or omitted in the WCMSA, as well as MSA professionals hired to create such allocations.

As we approach the end of 2014, with yet another year without appeal rights in work comp Medicare set asides, perhaps it is time to give up on the inconsistent CMS approval mechanism and the lack of a meaningful appeals process and instead begin to focus on finding alternative ways to make sure Medicare’s interests are properly considered and taken into consideration when settling entitlement to future medical care and prescription medications related to a work comp claim. Perhaps the time has come for the work comp industry to find a financially sound, secure and trusted way to make sure that by responsibly allocating for such future medical and prescription needs, every allocated dollar toward future medical care and medications related to the claim are in fact spent on such future needs.

At Helios, we assist our clients in taking control of the costs associated with MSP compliance. Whether a self insured, a third party administrator, or insurance carrier, we help our clients assure Medicare compliance by creating products and a process that will make sure such future medical and prescription needs related to the claim are appropriately taken care of at a reasonable and affordable cost.

Rafael Gonzalez is Vice President of Strategic Solutions at Helios. With over 25 years of experience in the workers compensation, liability, Medicare and Medicaid industry, Rafael serves as thought leader on all aspects of Medicare and Medicaid compliance, including mandatory reporting, conditional payments, and set asides. You may contact Rafael at or 813.612.5592.

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