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Sandy Simpson
02/Apr/2024
cmswcmsa

WCMSA Reference Guide Version 4.0 Updates of Significance

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 4.0 on April 1, 2024. This Reference Guide replaces Version 3.9 which was released on May 15, 2023. There are a few notable changes when comparing the two Reference Guides.   

Changes in This Version 4.0 of this Guide Include the Following Changes:

  • Instruction specific to beneficiaries has been added to encourage them to use their Medicare.gov access to the portal for the most efficient method of submitting attestations (Sections 11.1.1 and 17.5). This user-friendly mechanism which allows CMS to gain potentially more MSA spending information than it has received via traditional mailing, may lead to CMS denying more future medical claims or potentially considering whether recovery of future medical payments that slipped through the cracks is viable. 
  • The CDC Life Table link was updated (10.3) – available to view here.

 

To download the new WCMSA Reference Guide v4.0 click here.  This guide reflects information compiled from all WCMSA Regional Office (RO) Memoranda issued by CMS, from information provided on the CMS website, from information provided by the Workers Compensation Review Contractor (WCRC), and from the CMS WCMSA Operating Rules. The intent of this reference guide is to consolidate and supplant all historical memoranda in a single point of reference. Please discontinue the reference of prior documents.

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

 

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Medivest
25/Mar/2024
cmswebinar

CMS to Host “Change to Section 111 Workers’ Compensation Reporting #2” Webinar

On Tuesday April 16, 2024, Centers for Medicare & Medicaid Services (CMS) will be hosting a second webinar regarding the expansion of Section 111 Non-Group Health Plan (NGHP) Total Payment Obligation to Claimant (TPOC) reporting to include Workers’ Compensation Medicare Set-Aside (WCMSA) information. After the first webinar in November, CMS received additional questions and feedback from the industry. The intent of this webinar is to ensure that RREs will be prepared for the change once implemented.

With that in mind, this webinar will include a background recap, summary of technical details, updated timelines and CMP impacts. The presentation will be followed by a question and answer session. Because this expansion impacts reporting of WCMSAs, it is strongly recommended that Responsible Reporting Entities (RREs) that report Workers’ Compensation settlements attend.

 

Date:  April 16, 2024
Time:  2:00 PM EST

Webinar Link: https://cms.zoomgov.com/s/1610015349?pwd=NHcza3NhcDlCdjM0cVhENWlNcFBjZz09
Passcode:  750766

Or to connect via phone:

Conference Dial In:  1-833-568-8864
Conference Passcode:  161 001 5349

 

Additional information about the most recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients or your company, please contact Medivest or call us at 877.725.2467.

 

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Medivest
06/Dec/2023
cmswcmsa

WCMSA Fiscal Year Statistics With Analysis and Observations

On December 4th, 2023, Centers for Medicare & Medicaid Services (CMS) shared a new report titled Workers’ Compensation Medicare Set-Aside (WCMSA) Fiscal Year Statistics 2023. The report provides four fiscal years of data regarding Workers’ Compensation Medicare Set-Aside (WCMSA) Proposed Value and Workers’ Compensation Review Contractor Values (WCRC) from 2020 to 2023.

Takeaways

Total Submissions
Total WCMSA submissions to CMS declined steadily between CMS’ FY 2020 and FY 2022, descending from 16,517 to 13,752, a reduction of almost 17% in three years. FY 2023’s 15,743 submission count represents a reversal of that trend for the time being. This may be the result of the appearance of Section 4.3 in the WCMSA Reference Guide in 2022, in which CMS speaks about “non-submit” or “evidence-based” MSA programs, describing them as “a potential attempt to shift financial burden”.

Proposed vs Recommended
Those who decided to voluntarily submit their proposed WCMSA to CMS for review were rewarded with recommendations that were, all told, 22.95% percent higher than the proposed amount. For comparison, the average percentage difference between the submitter’s proposed MSA and CMS’ recommended MSA for CMS’ FY 2020 through FY 2022 was 13.9%. This is an increase of roughly 65% in CMS’ FY 2023 versus the prior three years’ average. Not only is the counter percentage higher, but the total recommended amount is higher. So, it’s not as if submitters have been lowballing their submissions. For those who embraced a non-submit program for fear of significantly higher MSA counters, CMS dangled no carrots in FY 2023 to encourage a return to voluntary submission.

Proposed MSAs and Total Settlement Amounts
WCMSAs submitted by the industry have, on average, consistently ranged between a proposed amount of $70,439 and $74,847 between CMS’ FY 2020 and FY 2023. Total Settlements utilizing WCMSAs over the same period have averaged between $159,579 and $171,170. Accordingly, WCMSAs constitute around 43% of the total settlement amount in which they are included (pre-CMS recommendation).

Medical vs Rx
Medical expenses with MSAs have increased steadily in recent years and CMS’ FY 2023 is no exception. CMS’ recommended total for the medical portion of submitted WCMSAs is up 13% since 2020. Conversely, Rx expenses have declined by 33%. While several factors are likely to be at play here, CMS’ use of sometimes aggressive NDCs to price drugs may be one culprit. Medivest consistently sees submitted MSAs priced using drug NDCs unavailable in the actual market, and well below market average.

The Big Question

These are statistics from those WCMSA’s submitted for approval, meaning they were written by industry-trained professionals in an attempt to match CMS’ recommended methodology. If the industry is consistent, what has changed at CMS? Also, what does this say about CMS’s position concerning non-submitted WCMSA’s that were written to Evidence-Based Medicine or other non-submit standards in light of the previously modified Section 4.3 of the WCMSA Reference Guide?

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us directly at 877.725.2467.

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Natt Reifler, Esq., CMSP, VP of MSP Compliance
14/Nov/2023
cmsSection 111

CMS to Expand TPOC Settlement Data Reported via the MSP’s Section 111 Mandatory Insurer Reporting

On November 13, 2023, CMS hosted a previously announced webinar focused on its upcoming expansion of Total Payment Obligation of Claimant settlement data (TPOC) to be reported under the Medicare Secondary Payer statute’s (MSP) Section 111 Mandatory Insurance Reporting.

The additional TPOC settlement data to be reported specifically includes whether a WCMSA amount was established and if so, any amount above $0.00 so designated, the amount that was approved by CMS (if applicable), the period of coverage (i.e. life expectancy of the injured worker), the funding type – whether funded by lump sum or via a structured annuity (without commenting on any preference or presumptions by CMS if funded one way or another), if funded by structure, the seed amount (a type of down payment estimating the first two years of coverage plus initial surgery for any included body part(s), the anniversary deposit (when additional annuitized payments would be made), the Case Control Number (starts with a W if submitted to CMS for approval or a 0 or 1 if not submitted), and the Professional Administrator’s EIN.

The premise for including the additional WCMSA information with TPOC data is to allow CMS to flag injury related medical diagnosis codes (ICD codes) in the Medicare beneficiaries’ record called the Common Working File (CWF) with a “W” (at least for those WCMSA’s that have been approved) to assist CMS in being more efficient at denying payment for medicals that are injury related and compensated in the TPOC settlement. The Workers’ Compensation (WC) carriers or self insureds appoint Responsible Reporting Entities (RREs) to currently provide Section 111 data for both ongoing claims with Ongoing Responsibility for Medicals (ORMs) and for settlements (TPOCs). Under this expanded reporting data set, RREs would be expected to submit this information for then current Medicare beneficiaries, with testing to occur in 2024 and implementation projected to begin in early 2025 as early as January 2025. While presenter John Jenkins, CMS Health Insurance Specialist, who also presented for CMS when the addition of Section 4.3 in the Workers’ Compensation Medicare Set-Aside Reference Guide (WCMSA Reference Guide) was announced and when CMS modified that language, made it clear that this expanded reporting expectation would not extend to No Fault or liability settlements compensating for future medicals (i.e. NFMSA’s or LMSA’s), he did say it was intended to cover WCMSA TPOC information even if the WCMSA at issue was not submitted to CMS for review/approval. For example, if the WCMSA allocation report used an Evidenced Based Medicine cost projection Method or other non-submit projection method as opposed to a CMS cost projection methodology espoused under the WCMSA Reference Guide, Jenkins explained that there would still be an expectation that this additional data would be reported to CMS.

Jenkins also indicated that once the WCMSA information is reported under Section 111, notification would be sent to the Medicare beneficiary directly.

As background in describing the history of Section 111, Jenkins reminded listeners that Section 111 is part of the federal MSP statute (42 U.S.C. Section 1395y(b)(2) et seq., and that its provisions were added to the MSP pursuant to the 2007 Medicare and Medicaid SCHIP Extension Act (MMSEA)(implemented a few years later). He also pointed out that in addition to the federal MSP statute, the regulations to the MSP are found in the Code of Federal Regulation (CFR) and that 42 C.F.R. 411.46 specifically, reiterates Medicare as a secondary payer to Workers’ Compensation claims (including for both ORM and TPOC’s, and that nothing in the webinar would replace any existing requirements of Responsible Reporting Entities as to thresholds for reporting ORM or TPOC’s).

Answers to questions from the webinar audience were provided by both Steve Forry, CMS Director Division of MSP Program Operations and presenter, John Jenkins, CMS Health Insurance Specialist.

Questions regarding the webinar’s contents and the subject matter may be submitted to CMS via its dedicated Section 111 email address, s111WCMSA@cms.hhs.gov.

Take Aways

This webinar gives us a glimpse as to how CMS intends to address the EBM and other non-submit WCMSA’s that it originally referenced when it added Section 4.3 to the WCMSA Reference Guide.  How CMS will be able to require data for something that is not required by law was not elaborated on and is yet to be seen.  However, as we in the MSP industry have always understood, while the WCMSA submission process is and has always been voluntary, we always knew that if you submit for approval, you are essentially now in the CMS arena where you will be playing by its guidance/rules.  Now, even if you don’t submit a WCMSA for approval, ostensibly for your RRE to be able to complete the Mandatory Insurance Reporting under Section 111, it seems the WCMSA amount and other new data will be available for CMS to assist it in its quest to comply with the MSP and prevent Medicare from paying until the primary plan’s injury related future compensation has been exhausted.

Claimant attorneys should be made aware of this procedure at the time it is implemented so they can field questions that may come back to them by injured workers.  Likewise, adjusters handling WC claims may also get follow up calls asking for clarification and what the notification means.  Ultimately, this means that representatives for WC carriers and representatives for injured workers should solidify their methods of providing informed consent to their respective clients so that nobody is surprised when a post settlement injury related medical that is usually Medicare covered is denied.  For those who establish WCMSA’s, the solution is to bill the WCMSA, document the expenditure (with items and services priced at the respective fee schedule rate and the prescription drugs at Redbook Average Wholesale Price (AWP), and keep up with attestations to CMS on an annual basis so that once exhausted, Medicare would become primary.

What’s New?

A new coversheet is available for any Non Group Health Plan (NGHP) or agent when corresponding with the Commercial Recovery Center (CRC) and can be found here:  CRC NGHP Correspondence Cover Sheet (cms.gov)

The NGHP Appeals Quick Reference Guide was updated and is available here:  NGHP Submit Appeals Quick Reference Guide April 2023 (cms.gov)

For Additional Information

Count on Medivest to help keep you up to date with the constant updates, guidance, and rule changes related to CMS’s enforcement of the MSP on a regular basis. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

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Sandy Simpson
07/Jun/2023
cmsNGHP

Update to MMSEA Section 111 Non-Group Health Plan User Guide

On June 5, 2023 Centers for Medicare & Medicaid Services (CMS) updated the MMSEA Section 111 NGHP User Guide version 7.2. It has been posted to the NGHP User Guide page on CMS.gov.  The NGHP User Guide version 7.2 replaces Version 7.1 which was released on April 4, 2023.

To download the updated MMSEA Section 111 NGHP User Guide 7.2 click here.

Who Must Report

An organization that must report under Section 111 is referred to as a responsible reporting entity (RRE). In general terms, NGHP RREs include liability insurers, no-fault insurers, and workers’ compensation plans and insurers. RREs may also be organizations that are self-insured with respect to liability insurance, no-fault insurance, and workers’ compensation.

What’s New – 7.2 Version

New information regarding Mandatory Insurer Reporting for Non-Group Health Plans (NGHPs) and NGHP Town Hall Events is posted here as it becomes available.

MMSEA III – June 6, 2023 – NGHP User Guide 7.2 Version Updates

    1. Chapter I: Introduction and Overview
    2. Chapter II: Registration Procedures
    3. Chapter III: Policy Guidance
    4. Chapter IV: Technical Information
    5. Chapter V: Appendices
    6. 270/271 Health Care Eligibility Benefit Inquiry and Response Companion Guide for Mandatory Reporting NGHP Entities, Version 5.8

  1. Chapter I: Introduction and Overview – Updates

The updates listed below have been made to the Introduction and Overview Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. There are no version updates to this chapter.

  1. Chapter II: Registration Procedures – Updates

The update listed below has been made to the Registration Procedures Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. There are no version updates to this chapter.

  1. Chapter III: Policy Guidance – Updates

The updates listed below have been made to the Policy Guidance Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. The guidance on determining the ORM termination date based on a physician statement has been clarified (Section 6.3.2). Guidance on what triggers the need to report ORM has been clarified (Sections 6.3 and 6.5.1.1).

  1. Chapter IV: Technical Information – Updates

The updates listed below have been made to the Technical Information Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide, as necessary. The NGHP Unsolicited Response File format has been simplified, and filename formats have been added (Section 7.5 and Chapter 10). For liability claims, it is now optional to report ‘NOINJ’ codes in certain circumstances (Section 6.2.5.2).

  1. Chapter 5: Appendices – Updates

The updates listed below have been made to the Appendices Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. The end-of-line character has been clarified for files using HEW software (Appendix E). The NGHP Unsolicited Response File layout has been simplified (Appendix F).

  1. 270/271 Health Care Eligibility Benefit Inquiry and Response Companion Guide for Mandatory Reporting NGHP Entities, Version 5.8 – Changes for this Release

The updates listed below have been made to the Appendices Chapter Version 7.2 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. The end-of-line character has been clarified for files using HEW software (Appendix E). The NGHP Unsolicited Response File layout has been simplified (Appendix F).

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

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Sandy Simpson
31/May/2023
cmswcmsa

WCMSA Reference Guide Version 3.9 Updates of Significance

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 3.9 on May 15, 2023. This Reference Guide replaces Version 3.8 which was released on November 14, 2022. There are a few notable changes when comparing the two Reference Guides.

To download the new WCMSA Reference Guide v3.9 Click Here.

CMS’s Version 3.9 Reference Guide

Section 1.1 includes the following changes:

    • All WC letters currently signed with CMS’ Director of Financial Services Group name and signature image have been updated to reflect the current CMS customer service contact information (Appendix 5).
    • The CMS Regional Offices are no longer responsible for approving initial determinations. Process language and contact information have been updated throughout the guide (Sections 9.0, 9.4.6, 9.5, and 18.0, and Appendix 5).
    • Clarification has been provided regarding intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacement frequency calculation (Section 9.4.5).
    • The maximum time limit for eligibility has been removed from the Amended Review process (Section 16.3).
    • The 94585 ZIP code has been added to the Walnut Creek Medical Center in the table listing major medical centers (Appendix 7).
    • The CDC Life Table link was updated (Section 10.3)

 

Appendix 5: CMS Customer Service Contact Signature Image Updated to All WC Letters

All WC letters currently signed with CMS’ Director of Financial Services Group name and signature image have been updated to reflect the current CMS customer service contact information (Appendix 5).  The following letters have been updated:

  • Approval Letter
  • Zero Set-Aside Letter
  • Below Threshold Letter
  • Beneficiary Below Threshold Letter
  • Development Letter
  • Closeout Letter

 

CMS Regional Offices No Longer Responsible for Approving Initial Determinations

The CMS Regional Offices are no longer responsible for approving initial determinations. Process language and contact information have been updated throughout the guide (Sections 9.0, 9.4.6, 9.5, and 18.0, and Appendix 5). Clarification has been provided regarding intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacement frequency calculation (Section 9.4.5). The maximum time limit for eligibility has been removed from the Amended Review process (Section 16.3). The 94585 ZIP code has been added to the Walnut Creek Medical Center in the table listing major medical centers (Appendix 7). The CDC Life Table link was updated (Section 10.3).

9.0 Updates: Process Language and Contract Information

WCMSA Submission Process Overview
  • 3.8 version: The WCRC applies the CMS’ criteria in reviewing proposals and forwards the proposals along with a recommendation on the appropriate funding amount to the assigned CMS Regional Office (RO) for a final determination.
  • 3.9 version: The WCRC applies CMS’ criteria in reviewing proposals and making a determination, forwards the final determination on the appropriate funding amount to CMS.

 

9.5 Updates: Regional Office Receipt to Determinations

  • 3.8 version: Regional Office Receipt

When the WCRC completes its review and recommendation, the case is sent to the RO assigned to the case based on the claimant’s state of residence and CMS’ state and region logic. Although the RO assignment is based on the state of residence of the beneficiary, a case may be transferred from one RO to another based on the case’s legal state of venue, or because the RO that the case was originally assigned to no longer processes WCMSA cases. When the RO receives the case, they review the WCRC recommendation and make a final determination in the case.

  • 3.9 version: Determinations

*The update pertains to cases may not progress to approvals for a number of reasons, basically switches the responsibility from the Regional Office (RO) over to the Workers’ Compensation Review Contractor (WCRC).

New Language Added
      • The WCRC may determine that the case should be closed. This can happen for a number of reasons, included: the parties are not longer settling, the case should be Black Lung instead of WC, the case is Liability rather than WC case, or the submitted has failed to submit necessary information after repeated development requests.  The submitted is notified of the case closure for ineligible cases closed for insufficient information.
      • When the WCRC completes its review and recommendation, CMS issues its determination in the form of an Approval letter to the submitter with copies sent to any eligible parties. Then the case is transferred to the Consolidated Regional Office to await receipt of the settlement documents so that the case may move to Final Determination/Case Completion.

     

9.6 Updates:  From Final Determination to Case Completion

  • 3.8 version: Final Determination

If the claimant is living, the case meets workload review threshold, any needed development has been received, and the case is not closed for other reasons, the RO reviews the WCRC’s recommendation and makes a determination as to the final CMS-approved WCMSA amount.

  • 3.9 version: Case Completion

If the claimant is living, the case meets workload review thresholds, any needed development has been received, the case is not closed for other reasons, and the WCRC’s recommendations have been provided, then an approval letter is issued to the submitter with a determination as to the final CMS-approved WCMSA amount.

9.4.5 Clarifications: Medical Review Guidelines

Intrathecal Pumps
  • 3.8 version: Permanent placement of IT pump devices are included every 7 years: the claimant’s life expectancy is divided by 7, decimals are dropped, and the whole number Is used for determining replacement over the life expectancy.
  • 3.9 version: CMS policy assumes that a beneficiary would obtain the prescribed therapy within the first year following settlement if not already placed, or at the next routine interval for replacement.  The routine replacement interval for IT pump devices is every seven years from the most recent placement date.  If the IT pump is not already placed, one year is removed from the life expectancy before the replacement calculation occurs to account for that initial replacement.  To calculate the number of replacements, the claimant’s life expectancy less the number of years from the most recent placement date is divided by seven, decimals are dropped, and the whole number is used for determining replacement over the life expectancy.
Examples:
        • Beneficiary life expectancy is 21 years and no IT pump is yet placed. Take the 21 years, subtract one year for the initial placement, divide the remainder by seven, and use the whole number with that result.
        • (21-1)/7 = 20/7 = 2.86
        • One initial placement is needed, plus 2 replacements.
        • Beneficiary life expectancy is 12 years and an IT pump was placed three years prior. Take the 12 years, subtract four years for the most recent placement, divide the remainder by seven, and use the whole number with that result.
        • (12-4)/7 = 8/7 = 1.14 One replacement is needed.

         

 Spinal Cord Stimulators
  • 3.8 version: Permanent placements of SCS devices are included every 7 years for non-rechargeable and every 9 years for rechargeable: the claimant’s life expectancy is divided by the frequency of replacement of type, decimals are dropped, and the whole number is used for determining replacement over the life expectancy.
  • 3.9 version: CMS policy assumes that a beneficiary would obtain the prescribed therapy within the first year following settlement if not already placed, or at the next routine interval for replacement.  The routine replacement interval for SCS devices is every seven years for non-rechargeable and every nine years for rechargeable from the most recent placement date.  If the SCS is not already place, one year is removed from the life expectance before replacement calculation occurs to account for that initial placement. To calculate the number of replacements, the claimant’s life expectancy less the number of years from the most recent placement date is divided by seven (or nice, depending on the unit type), decimals are dropped, and the whole number is used for determining replacement over the life expectancy.
Examples:
        • Beneficiary life expectancy is 33 years and no SCS is yet placed, but a non-rechargeable unit is appropriate. Take the 33 years, subtract one year for the initial placement, divide the remainder by seven, and use the whole number with that result.
        • (33-1)/7 = 32/7 = 4.57
        • One initial placement is needed, and 4 replacements are needed.
        • Beneficiary life expectancy is 17 years, subtract six years for the most recent placement, divide the remainder by seven, and use the whole number with that result.
        • (17-6)/7 = 11/7 = 1.57
        • One replacement is needed.

         

Pricing for Peripheral Nerve Stimulator (PNS) Surgery

(PNS) Surgery PNS surgery involves the placement of an electrode(s) in the direct vicinity of a specific peripheral nerve located outside the brain or spinal cord, thereby directly stimulating the painful peripheral nerve. CMS policy assumes that a beneficiary would obtain the prescribed therapy within the first year following settlement if not already placed, or at the next routine interval for replacement. The routine replacement interval for PNS devices is every seven years for non-rechargeable and every nine years for rechargeable from the most recent placement date. If the PNS is not already placed, one year is removed from the life expectancy before replacement calculation occurs to account for that initial placement. To calculate the number of replacements, the claimant’s life expectancy less the number of years from the most recent placement date is divided by seven (or nine, depending on unit type), decimals are dropped, and the whole number is used for determining replacement over the life expectancy. PNS replacement calculations are done the same as for SCS surgeries.

Examples:
        • Beneficiary life expectancy is 27 years and no PNS is yet placed, but a non-rechargeable unit is appropriate. Take the 21 years, subtract one year for the initial placement, divide the remainder by seven, and use the whole number with that result.
        • (27-1)/7 = 26/7 = 3.71
        • One initial placement is needed, and three replacements are needed.
        • Beneficiary life expectancy is 15 years and a rechargeable PNS was placed two years prior. Take the 15 years, subtract two years for the most recent placement, divide the remainder by seven, and use the whole number with that result. (15-2)/7 = 13/7 = 1.86
        • One replacement is needed.
        • Surgery pricing includes physician fees, facility fees, and anesthesia fees, if applicable.
        • Physician fees: CPT codes are identified and priced based on the appropriate state fee schedule (or usual and customary charges from a state).
            • 64555, Percutaneous implantation of neurostimulator electrode; peripheral nerve
            • 64555, Percutaneous implantation of neurostimulator electrode array; peripheral nerve (excludes sacral nerve)
            • 64590, Insertion or replacement of peripheral or gastric neurostimulator generator
            • 01941, Anesthesia
        • Facility fee: Generally, this procedure is handled in an outpatient setting. The appropriate APC should be included based upon surgery type.
            • 5462, Stimulator Trial
            • 5464, Stimulator Placement
            • 5464, Stimulator Replacement Consider the number of leads to be used.
        • Analysis Services: CPT 96972 can be billed every 30 days and more frequently in the first month. It should be priced four times in the first 30 days, monthly for the first year, and twice a year after the first year.
            • 95972 – Electronic analysis of implanted neurostimulator pulse generator system (e.g., rate, pulse amplitude, pulse duration, configuration of wave form, battery status, electrode selectability, output modulation, cycling, impedance, and patient compliance measurements); complex spinal cord, or peripheral (i.e., peripheral nerve, sacral nerve, neuromuscular, except cranial nerve) neurostimulator pulse generator/transmitter, with intraoperative or subsequent programming.
        • Anesthesia fee: The anesthesia fee is calculated by multiplying the time-value unit by a base value. The time-value unit is the reasonable time for a procedure. The base value is either established by the fee schedule, or by Medicare and conversion factors.
        • Trials: If an associated trial takes place before the surgery, the trial is assumed to be successful and included with the cost of surgery. PNS is one time after trial, if successful. If a trial fails, a repeat trial is usually not appropriate unless there are extenuating circumstances that led to the trial failure (equipment malfunction, early lead migration, etc.), technological advances, or an alternative neuromodulary technique that may lead to a more successful second trial (see LCD L34328). If submitters give a detailed breakdown of their proposed surgery prices, the reviewer will consider the proposed amounts.

         

16.3 Updates: Amended Review

  • 3.8 version: CMS has issued a conditional approval/approved amount at least 12 but no more that 72 months prior.
  • 3.9 version: CMS has issued a conditional approval/approved amount at least 12 months prior.

 

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

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Sandy Simpson
06/Feb/2023
msaSelf-Administration

Is Self-Administering Your MSA the Right Choice?

When an individual has a Medicare Set-Aside (MSA) account, they have the option to either self-administer the funds or have them professionally administered.  If self-administration is chosen, it can be a difficult and trying task to comply with the CMS’ rules; opening a MSA checking account, learning what type of expenses can be paid and cannot be paid out, coordinating health insurance benefits, keeping accurate records, and when to send reporting to CMS.  This blog will discuss what you need to know if you choose Self-Administration, and if self-administering your MSA is the right choice for you.

What is Self-Administration?

Self-administration is the process of managing the medical portion of your settlement, compromise and release, judgment, award or other payment/arrangement (“Settlement”) arising from an incident on the job and/or due to the negligence of another party. After a settlement, the individual is responsible for paying the medical claims following the process and guidelines set forth by the Centers for Medicare & Medicaid Services until the funds have been permanently depleted.

What is Professional Administration? 

Professional administration is the practice of using a qualified third party to oversee and manage funds for future medical expenses following a liability or Workers’ Compensation settlement. Though not required, Medicare strongly suggests the professional administration of a MSA. However, for those who choose self-administration, the individual is still responsible for using their MSA account to pay for injury-related and Medicare covered expenses in accordance with the Medicare Secondary Payer (MSP) Statute. The MSP provisions protect Medicare Trust Funds by ensuring that Medicare does not pay for items and services that certain health insurance or coverage, such as a MSA account, is primarily responsible for paying.

Two Ways to Fund Your MSA Account

Before the settlement has occurred, the settling parties will discuss the ways a MSA account can be funded. Typically, there are two options:
  1. Lump-Sum – a single lump sum payment to fund your MSA account.
  2. Structured Settlement Annuity Funding – an initial deposit to fund your account and smaller annual deposits in the following years. The initial deposit covers the first two years of annual funding for treatments plus any cost for proposed first surgeries. If the MSA funds are not spent down in a given year, the funds must remain in the account and carry forward into the next year.

Establishing a Self-Administration Bank Account

Below is a list of CMS’ requirements regarding opening up a separate bank account for the MSA funds.
  • Deposit MSA funds into its own account, separate from any other accounts you may have
  • The account must earn interest and the interest must stay in the account
  • The account should be insured by Federal Deposit Insurance Corporation (FDIC)
  • Choose a bank or an account that does not charge fees if you have a low balance
  • Select an account that allows you to write checks

 

Know What Is Covered

It is important to recognize that not every medical bill or service can be paid out of the MSA account. For individuals self-administering their account, it is highly important to be aware of qualified expenses. Below is a partial list of the expenses that can and cannot be paid out of the account:

Expenses That Can Be Paid

  • Funds can only be used to pay for future care that is Medicare covered and related to your injury.
  • Cost of copying documents
  • Mailing fees/postage
  • Any banking fees related to the account
  • Paying income tax on the interest income earned in the account*
*Note – The MSA funds are not considered taxable income, but the interest earned is taxable. Each year your bank will issue an IRS 1099-INT form for the interest earned in the account.

Expenses That Cannot Be Paid

  • Fees for trustees, custodians, or other professionals hired to help administer the account
  • Expenses for administration of the MSA other than those listed above
  • Attorney costs for establishing the MSA
  • Cannot use to purchase a Medicare supplemental insurance policy or a Medigap policy
  • Medicare premiums, co-payments, and deductibles
  • Acupuncture
  • Routine dental care
  • Eyeglasses
  • Hearing aides
For a more extensive list of what Medicare will pay, click here to obtain a copy of the free handbook “Medicare & You”.

Keep Accurate Records of All Transactions

Bank statements, receipts, and tax records should all be kept and recorded.  Self-administering parties will not need to submit these records annually, but Medicare may request them as proof that the account is being used correctly. It is also recommended that settlement documents showing the date the case was settled, diagnosed injury, and date of injury are also kept. Consider keeping accurate records for each transaction such as:
  • Transaction date
  • Check number
  • “Payable to” or provider’s name
  • Date of service
  • Description – procedure, service or item received, deposit, interest, other allowable expenses
  • Amount paid
  • Deposit amount
  • Account balance
  • Interest earned

What is Coordination of Benefits for a MSA?

The MSP program is in place to ensure that Medicare is aware of situations where it should not be the primary payer of claims.  Sometimes a Medicare beneficiary with a MSA account, public benefits, and other health insurance; the Coordination of Benefits (COB) rule decides which entity should pay first on a claim. In certain situations, if Medicare has paid a claim by mistake, CMS will take action to receive the mistaken Medicare payment.

What is the MSA Attestation?

If the MSA proposal was approved, CMS requires the attestation form to be signed, attesting that the injured party has used the account correctly and to report the amounts spent. If Medicare is satisfied that the right amount of money has been spent appropriately, Medicare will pay for future treatments for this work injury. Below is the information found on the attestation form.
  • Total spent for medical services
  • Total spent for prescription drugs
  • Grand total of expenditures
  • Total of interest income the account earned if any
  • Balance of MSA account at the end of the calendar year

Annual Attestation or Expenditure Letters Reporting

CMS’ Benefit Coordination & Records Center (BCRC) is responsible for monitoring and receiving the submitted attestations forms. The attestation informs Medicare that they are now primary payer when your funds have exhausted.  Note, once the account funds are exhausted you must continue to pay your Medicare monthly premiums, co-pays, and deductibles in order for Medicare to pay your claims. CMS has the right to demand and receive a complete accounting of payments made from the account at its discretion. The following only applies if the MSA proposal has been approved by CMS.
  • Annual Attestations must be submitted every year, no later than 30 days after the end of each reporting period (beginning one year from the date of establishment of the MSA account). Annual attestations should continue through final exhaustion of the account.
  • Temporary Exhaustion occurs when the MSA account funds have exhausted before the next annuity has been deposited into the account.
  • Final Depletion or Permanent Exhaustion is where the MSA account has no money left and no future deposits of funds are expected.
  • Death Occurs / Inheritance before the MSA account is permanently exhausted you will need to notify the BCRC of death. This may require the MSA account to stay open for some time to pay outstanding claims.
  • Completely Exhausted within 60 days of the date the MSA account is depleted, send the BCRC a final attestation that the account is ‘Completely Exhausted”.
  • Loses Medicare Entitlement
  • Re-Establishes Medicare Entitlement

How to Submit Your Attestation to CMS’ BCRC

  1. Electronical Attestation is a Medicare web portal that allows submission of either yearly or final attestations electronically. For more information about how to submit an attestation electronically, please see the MSAP User Guide.
  2. Mail-in Submission / Paper Copy

MSA Proposal/Final Settlement
PO Box 138899
Oklahoma City, OK 73113-8899

  1. Call BCRC

855-798-2627 or TTY/TDD
855-787-2627 for the hearing and speech impaired
Opened: Monday – Friday, from 8am – 8pm | Eastern Time

Medivest’s Solutions

If handling a Self-Administrated account becomes too difficult of a task, Medivest can help. We provide the following options that may reduce the burden of keeping track of the details:
1. Switch to Medivest’s Professional Administration Service
For over 25 years, Medivest has been helping clients navigate the complexities of the MSP and protecting their Medicare benefits. Our services guarantee the most comprehensive and cost-effective professional administration program available and provides:
  • Streamlined reporting and compliance
  • Savings on treatment, equipment, and pharmaceuticals
  • Expert support and service
2. Purchase Medivest’s Self-Administration Kit
Medivest offers a Self-Administration Kit that equips individuals who opt to manage their own Worker’ Compensation or Liability settlement with many of the tools and services available to Professionally Administers settlements. The Medivest Self-Administration Kit has been designed to give the individual the flexibility in determining just how “hands-on” they wish to be in managing their medical funds, while providing to the settling parties the piece of mind that comes from knowing due diligence has been considered.   Below are the services that are included Medivest’s Self-Administration Kit Services:
  • Detailed Booklet
  • Unlimited Phone
  • Medical Bill Review
  • Pharmacy and Durable Medical & Equipment (DME) Discounts

 

For additional information regarding Medivest’s Professional Administration Services or Self-Administration Kits or to get started with one of these options today call us at 877.725.2467 or contact us here.

 

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Sandy Simpson
15/Nov/2022
cmswcmsa

WCMSA Reference Guide Version 3.8 Updates of Significance

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 3.8 on November 14, 2022. This Reference Guide replaces Version 3.7 which was released on June 6, 2022. There are a few notable changes when comparing the two Reference Guides.
 

CMS’s Version 3.8 Reference Guide, Section 1.1 includes the following changes:

Changes in This Version of the Guide Version 3.8 of this guide includes the following changes: Clarification has been provided regarding re-review requests when errors exist in the submission documentation, as well as re-review limitations (Sections 16.1 and 16.2). Note: These re-review changes are only available for approvals from September 1, 2022 forward.

To download the new WCMSA Reference Guide v3.8 Click Here.

For your convenience, we have included the entirety of Section 16.1 and 16.2, so you will have the most up to date information regarding the process of re-review:

16.1 Re-Review

When CMS does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is no formal appeals process. However, there are several other options available. First, the claimant may provide the WCRC with additional documentation in order to justify the original proposal amount. If the additional information does not convince the WCRC to change the originally submitted WCMSA amount and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement. Medicare will exclude its payments for the medical expenses related to the injury or illness until WC settlement funds expended for services otherwise reimbursable by Medicare use up the entire settlement. Thereafter, when Medicare denies a particular beneficiary’s claim, the beneficiary may appeal that particular claim denial through Medicare’s regular administrative appeals process. Information on applicable appeal rights is provided at the time of each claim denial as part of the explanation of benefits.

 

A request for re-review may be submitted based one of the following:
  1. Mathematical Error: Where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred), or
  1. Missing Documentation: Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
    • Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
    • Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
    • Should no change be made upon response to a re-review request (i.e., no error was identified), additional requests to re-review the same error will not be entertained.
  1. Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual. Note: This submission option is only available for approvals from September 1, 2022 forward.
    • Examples include, but may not be limited to; medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

 

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.
Re-review shall be limited to no more than one request by type.
Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.

 

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.
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Sandy Simpson
15/Aug/2022
cmslmsaMedicare Set-Aside

When is a Medicare Set-Aside Proposal Recommended?

Consider this scenario: you are a personal injury attorney, and you get a call from a new client who is 63 years old and is interested in settling her automobile accident case.  Per the Medicare Secondary Payer statute and as part of the case workup, you need to make sure you are not shifting the burden to Medicare.

What is the Medicare Secondary Payer Statute?

The MSP statute was passed by Congress in 1980 in order to protect the financial integrity of the Medicare Trust Fund. Per this statute/law, Medicare is a secondary payer for workers’ compensation, no-fault insurance, liability insurance, self-insured plans, and employer group health plan insurance. According to the MSP regulations, these other sources of health care coverage are to be the primary payer, with Medicare being the secondary form of payment.

What is a Medicare Set-Aside (MSA) Proposal?

A MSA proposal is a detailed report indicating the anticipated Medicare allowable, Injury-related expenses for the remainder of the injured individual’s life expectancy.  It is a calculation that determines a dollar amount that should be “set aside”  as part of the settlement process to satisfy the Medicare Secondary Payer Statute (MSP) and to avoid shifting the burden to Medicare.

Guidance from Medicare for Liability Cases

The Centers for Medicare and Medicaid Services (CMS) published the WCMSA Reference Guide to help attorneys understand the process CMS uses for approving proposed Workers’ Compensation MSA (WCMSA) arrangements. The purpose of the WCMSA Reference Guide was to consolidate and supplant all the historical CMS memos into a single point of reference.
However, Workers’ Compensation and Liability settlements have several different nuances.  CMS has yet to release the long-awaited LMSA Reference Guide for liability settlements, despite announcing its intention to do so in 2018. Given the current lack of guidance concerning Liability MSAs from CMS, attorneys should look to the WCMSA Reference Guide for guidance when settling their liability cases.

Litmus Test –  Is a MSA Proposal Recommended?

In order to determine if a MSA allocation is recommended to cover Medicare’s interest in your settlement, there are several key items to review. Attorneys can do a quick MSA litmus test to determine whether or not a MSA is recommended.
  • Your client is currently Medicare-eligible
  • Your client is 62.5 years old and within 30 months of becoming eligible for Medicare benefits
  • Your client has either applied for Social Security Disability Insurance (SSDI) or has an open or pending application Will there be any money after medical liens have been resolved to fund a Medicare Set-Aside (MSA) account?

Medicare Eligibility

What is Medicare’s criteria for an individual to become Medicare eligible? Medicare is available for people aged 65 or older, younger people with disabilities, and people with End Stage Renal Disease (permanent kidney failure requiring dialysis or transplant).

Social Security Disability Insurance (SSDI)

An individual who has either applied or has reapplied for Social Security Disability Insurance can become Medicare eligible. Social Security Disability Insurance (SSDI) is a federal program that helps those who have become disabled from work.  An individual can apply for SSDI when:
  • A person is unable to engage in any “substantial gainful activity” due to an illness or disability and;
  • When a person is not able to return to work for 12 months or more and;
  • When a person has accumulated enough work credits in the last 10 years to qualify.

30 Months to Become Medicare Eligible

The reason why it takes 30 months to become Medicare eligible after the individual has either applied or reapplied for SSDI is that:
  • The individual needs to wait one month after the date of injury to apply for SSDI.
  • After the SSDI applicate date, there is a waiting period of 5 months to receive SSDI entitlement.
  • From the date of SSDI entitlement, Medicare has 24 months waiting period to become Medicare eligible.

Medicare Set-Aside (MSA) – Not Required by Law

Did you know that a Medicare Set-Aside is not required by law? You should know the risks if you choose not to have a MSA prepared, by understanding CMS’ interpretation regarding MSP compliance. In the event there was a failure to address Medicare’s interest in the settlement, Medicare may refuse to pay future medical expenses that are injury-related until the entire settlement is exhausted.

Best Practices

Our highly trained Medicare Expert Case Advisors can help you figure out if Medicare may have an interest in your settlement. We assist all settling parties to navigate the MSP complexities and provide you with cost-saving strategies for your settlement.
To receive our complimentary MSA Decision Tree, “When Is a MSA Allocation Recommended?”  click here.
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Medivest
24/Mar/2022
cmsmsawcmsa

WCMSA Reference Guide Version 3.6 Updates of Significance

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 3.6 on March 15, 2022. This Reference Guide replaces Version 3.5 on January 10, 2022. There are a few notable changes when comparing the two Reference Guides.  The blue highlights below indicate the updated changes provided in Reference Guide Version 3.6.
To download the new WCMSA Reference Guide v3.6 click here.
Version 3.6 of this guide includes the following changes:
Clarification has been provided regarding the use of non-CMS-approved products to address future medical care (Section 4.3), as well as documentation and re-review tips (Sections 9.4.1.1, 10.2, and 16.1).

 

4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care – Additions and Replacements

A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.”
42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.
As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.
Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period.
CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met. 

 

9.4.1.1 Most Frequent Reasons for Development Requests – Expanded Explanations

The five most frequent reasons for development requests by the WCRC:
    1. Insufficient or out-of-date medical records. Medical records are required documents for all submissions, including situations where the parties are in dispute.
    2. Insufficient payment histories, usually because the records do not provide a breakdown for medical, indemnity or expenses categories. Payment histories are required documents for all submissions, including situations where the parties are in dispute, and must include breakdowns for payment categories along with identification of any category codes.
    3. Failure to address draft or final settlement agreements and court rulings in the cover letter or elsewhere in the submission. Draft or final settlement agreements and court rulings are required documents for all submissions, if they exist. For settlements where conditional payments are made as an element of the agreement, the WCRC will not accept a letter indicating that draft or final settlements do not exist.
    4. Documents that are referenced in the file are not provided—this usually occurs with court rulings or settlement documents.
    5. References to state statutes or regulations without providing sufficient documentation (i.e., to which payments the statutes/regulations apply or a copy of the statute or regulation, or notice of which statutes or regulations apply to which payments).

 

10.2 Section 10 – Consent to Release Note – Additions

The Consent to Release note is the claimant’s signed authorization for CMS, its agents and/or contractors to discuss his or her case/medical condition with the parties identified on the authorization in regard to the WC settlement that includes a WCMSA. When you submit your WCMSA, you are required to include the signed consent, plus any applicable court papers if the consent is signed by someone other than the claimant (for example, a guardian, power of attorney, etc.). Do not include unsigned consents or consents to obtain medical records from a provider.
All consent-to-release notes must include language indicating that the beneficiary reviewed the submission package and understands the WCMSA intent, submission process, and associated administration. This section of the consent form must include at least the beneficiary’s initials to indicate their validation.
Consent to Release documents must be signed (by hand or electronically) with the full name of either the claimant, matching the claimant’s legal name, or by the claimant’s authorized representative, if documentation establishing the relationship is also provided. It must be a full signature, not just initials. For electronic standards, only the use of an E-SIGN Act-compliant e-signature or initials are considered valid.
If there is a change in submitter, please see Section 19.4 for more information.

 

16.1 Re-Review – Additions

A request for re-review may be submitted based one of the following:
    1. Mathematical Error: Where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred), or
    2. Missing Documentation: Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
      • Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
      • Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
      • Should no change be made upon response to a re-review request (i.e. no error was identified), additional requests to re-review the same error will not be entertained.”

 

Analysis

The removal of the reference to indemnification in the first part of Section 4.3 seems to have been CMS’s way of expressing its realization that the intent of settling parties in using non-submit WCMSAs is to protect Medicare’s interests as opposed to being designed merely to protect against MSP exposure via a shift of risk from one company’s errors and omissions coverage to another’s.
[Old Section 4.3 phrase]: “with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries.” [New Section 4.3 phrase]: “for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide.”
Does the additional language about expectations for WC settlements that do not meet workload review threshold in Section 4.3 now really clarify what the plan for future care should be when the two examples in Section 8.1, titled Review Thresholds still describe recoveries by CMS for payments and care related to the injury up to the total value of the settlement if the settling parties fail to consider Medicare’s future interests/fail to establish “some plan for future care” ?  The referenced examples are listed below for ease of access:
Example 1: A recent retiree aged 67 and eligible for Medicare benefits under Parts A, B, and D files a WC claim against their former employer for the back injury sustained shortly before retirement that requires future medical care. The claim is offered settlement for a total of $17,000.00. However, this retiree will require the use of an anti-inflammatory drug for the balance of their life. The settling parties must consider CMS’ future interests even though the case would not be eligible for review. Failure to do so could leave settling parties subject to future recoveries for payments related to the injury up to the total value of the settlement ($17,000.00).
Example 2: A 47 year old steelworker breaks their ankle in such a manner that leaves the individual permanently disabled. As a result, the worker should become eligible for Medicare benefits in the next 30 months based upon eligibility for Social Security Disability benefits. The  steelworker is offered a total settlement of $225,000.00, inclusive of future care. Again, there is a likely need for no less than pain management for this future beneficiary. The case would be ineligible for review under the non-CMS-beneficiary standard requiring a case total settlement to be greater than $250,000.00 for review. Not establishing some plan for future care places settling parties at risk for recovery from care related to the WC injury up to the full value of the settlement.

 

Stay Up To Date

Count on Medivest to help you navigate your risk tolerance in light of the new CMS WCMSA Reference Guide language to see if we can’t find the right balance to reasonably protect Medicare’s interests in your settlement. Medivest will continue to monitor changes in the guidance and regulations published by CMS and will keep its readers up to date when such changes are announced/made. For questions regarding these updates, please reach out to a Medivest representative in your area by clicking here or by calling us direct at 877.725.2467.

 

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