MSA Optimism for the New Year

The Centers for Medicare & Medicaid Services (CMS) announced the organization will be reconsidering a new policy in 2017 regarding re-reviews of otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. According to the CMS announcement, this new policy would only apply to claims “where settlement has not occurred.” As such, if settlement has been agreed upon CMS will not consider a re-review. The timing of any such change, however is yet unknown.

The Centers for Medicare & Medicaid Services recently revisited the task of reviewing its process for addressing requests for CMS to “re-review” otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. In Calendar year 2017, CMS expects to update its existing re-review process to address situations where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially. CMS also expects its updated process to address situations where certain states rely on Utilization Review Processes to justify proposed WCMSA amounts.

At present, CMS provides no formal appeal process. Rather, a one shot re-review process allowing submitters to provide new and different information not previously considered so long as the new and different information predates submission of the case to CMS. Employers, insurers and claimants are also unable to obtain revised MSA approval following a significant change in the claimant’s pre-settlement medical condition.

In addition, CMS will be issuing a policy regarding use of utilization review in MSA submissions in certain states where there is reliance on Utilization Review Processes (UR) to justify proposed WCMSA amounts. Currently, CMS generally recognizes California UR determinations as a limitation on medical care in the MSA if upheld through the statutory Independent Medical Review (IMR) process. Other state UR processes, however, have not been recognized as they are not considered by CMS to be final determinations.

While many states do not rely on UR processes to allocate MSAs, many stakeholders do rely on state law to justify a suggested MSA amount. Unfortunately, CMS policies do not always take into account the statutes used to adjudicate the underlying claim.

A revised MSA re-review process along with an accurate interpretation of state law will allow stakeholders to question the reasonableness of CMS’ counter-higher demands. Such changes will also give stakeholders the opportunity to provide the documentary support needed to explain their proposal and give MSP stakeholders a valid and meaningful appeals process with which to challenge proposed WCMSAs. Whether this announcement will eventually allow for a hearing or a neutral decision maker to review, or other administrative and judicial appellate rights, remains to be seen. Nevertheless, we are optimistic about the potential expansion of the CMS MSA Re-Review process where there has been a substantial change in medical care as this gives insurers, employers and claimants another opportunity to more appropriately settle workers’ compensation claims with open medical benefits. The ability to rely on applicable state statutes during the WCMSA process is similarly encouraging.

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