The Centers for Medicare and Medicaid Services (CMS) released the latest update on July 31, 2017, of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide dated July 10, 2017. To view the reference guide click here. It contains some long-awaited good news for those jurisdictions with State-Specific Statutes, some clarification on several items and further information related to the new Amended Review process.
CMS provides information regarding what is required for approval when preparing a WCMSA according to State-Specific Statutes in Section 9.4.5 (page 24). They also throw out a warning to include this information in the initial submission and note, “Failure to include the required documentation at the time of original submission will not constitute a reason for the request of a re-review.”
Submitters requesting an alteration to pricing based upon state-legislated time limits must be able to show by a finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate. For example, this would apply to Georgia statute limiting future medical to 400 weeks for non-catastrophic cases here the date of injury is after July 1, 2013. While it appears CMS will now honor state statutes with time limits for treatment, a court order or finding confirming the claim does not meet the exemptions under the state law will be required.
CMS also indicates for those states where treatment is varied by some type of state-authorized utilization review board, the submitter shall include the alternative treatment plan from the treating physician confirming what treatment has replaced what was deemed unnecessary by the utilization review board. In California, carriers and Third Party Administrators (TPAs) will no longer be able to rely on the Independent Medical Reviews (IMRs) alone. Going forward, carriers and TPAs will need to seek an alternative treatment plan from the treating physician prior to submission of a WCMSA when treatment has been deemed unnecessary. It also brings up scenarios where no alternative treatment is necessary. If a claimant is receiving duplicate therapy, (such as two skeletal muscle relaxants) and utilization review deems the use of one of them as unnecessary there may be no alternative treatment or replacement for that treatment. In those instances, an argument may need to be made that no replacement is needed. CMS may require a statement from the treating physician to that effect as well.
Information regarding the previously released Amended Review process has been added under Section 16.0; please refer to our prior blog from July 13, 2017, with further details regarding the items needed for this type of review. This section points out several warnings
- Only cases not yet settled as of the date of the request for re-review qualify for this re-review process;
- “The approval of a new generic version of a medication by the Food and Drug Administration does not constitute a reason to request a new case review for supposed changes in projected price.” This cannot be the only reason/change for the re-review request;
- CMS will deny the request for re-review if submitters fail to provide the required information and justifications referenced with the request for re-review. Submitters will not be permitted to supplement the request for re-review. CMS is confirming all required information must be supplied with the Amended Review request or the request will be denied.
Further clarification regarding hearing on the merits of a case in the context of whether the WCMSA should be submitted to CMS is found in Section 4.1.4. Because the CMS prices are based upon what is claimed, released or in effect released, CMS must have documentation as to why disputed cases are compromised and settled with future medical costs allocated for less than the recommended pricing. As a result, when a state WC judge or other binding party approves a WC settlement after a hearing on the merits, Medicare generally will accept the terms of the settlement, unless the settlement does not adequately address Medicare’s interests. This shall include all denied liability cases, whether in part or in full. For example, CMS is asking to see supporting evidence that the burden of proof was not met by the claimant, no causation medical evidence was proffered by the claimant within the statute of limitations period, a judicial decision ruled the employer/defendant was not responsible based upon findings of fact and law. If Medicare’s interests are not reasonably considered, Medicare will refuse to pay for services related to the WC injury (and otherwise reimbursable by Medicare) until such expenses have exhausted the entire dollar amount of the entire WC settlement. Medicare may also assert a recovery claim, if appropriate.
Spinal Cord Stimulator (SCS) pricing with CPT codes has been added to section 9.4.5. The reference guide goes into great detail on how to price a SCS appearing to suggest pricing for SCS will be different per jurisdiction going forward, instead of the same price for all states across the board, which has been the current allocation methodology utilized by the Workers’ Compensation Review Center (WCRC) up to this point. We will be monitoring this closely for any changes. CMS also differentiates the allocation differences between the non-rechargeable (every seven years) and rechargeable SCS devices (every nine years).
CMS has added a new section addressing changes in the submitter of record, found in Section 19.4, stating “CMS requires a written release from services by the original submitter and a new signed Consent to Release form authorizing the new submitter. Both must be provided in order to continue the WCMSA review process. Submitter changes will not be accepted after settlement.” This has been the process for quite some time but was not previously documented. It is our hope this will also apply to files having been previously approved by CMS but never settled, which in the past CMS has not always been honored.
Other minor changes/additions are found in the following sections:
- Section 9.4.4 Medical Review: Step 5: Verifies jurisdiction and calculation method
- Section 16.1 Required Resubmission: If a file is closed by CMS for a year or longer the initial submission will have to be re-done completely (start over)
- Section 17.1 Administrators: CMS has added a sentence to this section recommending professional administration
- Section 18.104.22.168 Pharmacy Guidelines and Conditions – Medically Accepted Indications and Off-Label Use: (clarification)
- Section 10.4 Section 20 – Life Care / Future Treatment Plan: CMS has added the following sentence and made this section in the CMS portal a mandatory addition: “For the purpose of evaluating plan proposals, either a Life Care Plan or Future Treatment Summary is required for submission.”
- Section 10.5.3 Total Settlement Amount: This section has been expanded with more detail of what the computation of the total settlement amount includes.
We recommend our clients review the updated reference guide to determine if any updates/changes apply to their specific cases. Please continue to watch this site for additional updates, news or trends from CMS as the above updates start to unfold.