Will CMS raise the bar for Zero MSA Allocations?

For many years, the Centers for Medicare and Medicaid Services (CMS) would approve a zero MSA allocation if the submission met the following criteria, along with supporting documentation, was provided as proof thereof:

  1. The claim had been denied
  2. There had not been any
    1. indemnity payments
    2. paid medical expenses
    3. prior indemnity settlement

CMS announced today (11/1/2016), that effective immediately, the Workers’ Compensation Review Contractor (WCRC) will utilize procedures that were previously in effect in reviewing zero MSAs. Additionally, despite not specifically announcing plans to do so, there are indications that CMS may be re-evaluating an internal rule associated with denied and zero MSA allocations that is being misinterpreted. If pursued, the revisions stand to raise the bar for approval even higher. If implemented, CMS plans to use the following three-pronged test in order for a Medicare Set-Aside (MSA) to qualify for a zero allocation:

  1. The claim itself or the injury alleged had been initially denied in its entirety
  2. There has been no medical or indemnity payments for the claim or alleged injury, and no acceptance of ongoing responsibility for medicals (ORM) reported
  3. There has been either a final judicial determination after an evidentiary hearing on the merits eliminating the employer of responsibility, OR there exists medical records or documentation from the Medicare beneficiary’s treating physician indicating that no future treatment is anticipated.

Said another way, CMS may only approve a zero allocation if it can be determined that no compensable workers’ compensation claim exists, or no future medical expenses are anticipated, and no payments to the contrary have been made. You may ask, if I have one of the items listed above in number three, would I really need to have an MSA allocation at all?

There is no indication that zero MSA allocation changes will be a topic of discussion at the recently announced CMS Town Hall Teleconference scheduled from 1:00 to 2:30 p.m. EST on Nov. 17, 2016. The subject of the teleconference was listed as pertaining to: Ongoing Responsibility for Medicals (ORM) recovery, Final Conditional Payment (CP) process reminders, and Medicare Secondary Payer Recovery Portal (MSPRP) improvements. However, inquiry about zero MSA allocations may occur. To participate, you may call (800) 603-1774 and enter the pass-code: 987659 between 5-10 minutes before the event begins. For now, you may proceed as usual as CMS states it will publish any pending changes when or before they go into effect. Additionally, denied or zero MSAs are still being reviewed without a court order. However, if you have a zero MSA in the future, you may wish to:

  1. Submit treatment records from the treating physician demonstrating no further treatment for the claimed injuries/illnesses will be required
  2. Obtain, and provide CMS, a judiciary ruling after a hearing on the merits regarding the compensability of the claim
  3. Review and if applicable, proceed to finalize as a strict compromise settlement as defined by CMS guidelines rather than submit.

If you have questions, please contact Lavonya Chapman, Esq., RN, CMSP; Optum, Medicare Secondary Payer Compliance Counsel, Settlement Solutions, 813-612-5525, lavonya.chapman@optum.com.

*Note: CMS approval of zero MSAs is intended for commutation claims. You may wish to refer to the WMCSA Reference Guide to determine whether your claim is considered a “compromise” versus “commutation” type settlement. See § 4.1.1 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, version 2.5, revised 4/4/2016.

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