CMS Issues a Revised WCMSA Reference Guide and Section 111 User Guide

The Centers for Medicare and Medicaid Services issued a revised WCMSA Reference Guide (Reference Guide), Version 2.9, which can be found here: WCMSA Reference Guide.  In addition to changes to development and alert templates; references to removal of certain memorandum from cms.gov; and reference to the updated CDC Life Table, the Reference Guide also includes updates to Spinal Cord Stimulators (SCS), and the inclusion of Lyrica, Trazodone and other off-label drugs in an MSA.

Section 1.1 of the Reference Guide state as follows:

  • To eliminate issues around Development Letter and Alert templates auto-populating with individual Regional Office (RO) reviewer names and direct phone numbers, these will now display the generic “Workers’ Compensation Review Contractor    (WCRC)” and the WCRC customer service number “(833) 295-3773” (Appendix 5).
  • Per CMS’ request, certain references to memoranda on cms.gov have been removed.
  • The CDC Life Table has been updated for 2015 (Section 10.3).
  • Updates have been provided for spinal cord stimulators and Lyrica (Sections 9.4.5 and 9.4.6.2).

With respect to SCS, Section 9.4.5 now includes the following language:

Routine replacement of the neurostimulator pulse generator includes the lead implantation up to the number of leads related to the associated code. Revision surgeries should only be used where a historical pattern of a need to relocate leads exists…

Surgery pricing may include physician, facility, and anesthesia fees. SCS pricing is based on identification of: 1.) Rechargeable vs. Non-rechargeable and 2.) Single vs. Multiple Arrays (leads). If unknown, CMS will default to non-rechargeable single array.

This pricing methodology outlined by CMS is consistent with recent CMS approval trends.

In addition, traditionally excluded from MSAs based upon off-label usage arguments, CMS has recently included Lyrica in certain allocations.  The new Reference Guide specifically addresses off-label usage arguments with respect to Lyrica as follows:

Example 1: Lyrica (Pregabalin) is cited in MicroMedEx for an off-label medication use related to neuropathic pain from spinal cord injury, and a number of scientific studies indicate that Pregabalin shows statistically significant positive results for the treatment of radicular pain (a type of neuropathic pain). Spinal cord neuropathy includes injuries directly to the spinal cord or its supporting structures causing nerve impingement that results in neuropathic pain. Lyrica is considered acceptable for pricing as a treatment for WCMSAs that include diagnoses related to radiculopathy because radiculopathy is a type of neuropathy related to peripheral nerve impingement caused by injury to the supporting structures of the spinal cord.

The language above utilized by CMS for the inclusion of Lyrica in the MSA may be an indication of things to come not only with respect to more and more allocations including this medication, but inclusion of additional off-label medications that were previously excluded from the MSA. A second example in the Reference Guide describes circumstances in which Trazodone will be included in MSAs.

In addition to the new WCMSA Reference Guide, CMS has also issued a new Section 111 NGHP User Guide (Guide).  The updated Guide includes the confirmation that the review threshold for reporting in 2019 will remain $750 for liability insurance settlements, judgments awards or other payments and $750 for no-fault and workers’ compensation claims where there is no ongoing responsibility for medicals (ORM) that was previously posted by CMS.  The Guide can be found here – Full Guide for further review and reference.

NuQuest will continue to keep you apprised of further Medicare compliance developments as they become available.

 

CMS and Medicaid to Convert to CDC 2015 Life Table

The Centers for Medicare and Medicaid Services has announced that it will convert to the CDC’s “Table 1: Life Table for the total population: United States, 2015“ for Workers’ Compensation Medicare Set-Aside life expectancy calculations.  The change to the updated life table will become effective as of January 5, 2019.  There is a slight increase in life expectancy reflected in the new table and in some circumstances this may decrease WCMSA calculations.  All WCMSAs should reflect the updated life table changes from January 5, 2019 and ongoing.

For further information regarding this alert or any Medicare compliance needs, please contact the NuQuest Legal Team.

The OMB Issues Intent of Notice of Proposed Rule Making for Section 111 Penalties

In an abstract entitled “Civil Money Penalties and Medicare Secondary Payer Reporting Requirements,” the Office of Management and Budget has issued another intent of Notice of Proposed Rulemaking this time involving Section 111 Reporting penalties.  Specifically, the abstract of the Notice provides as follows:

Section 516 of the Medicare Access and CHIP Reauthorization Act of 2015 amended the Social Security Act (the Act) by repealing certain duplicative Medicare Secondary Payer reporting requirements. This rule would propose to remove obsolete Civil Money Penalty (CMP) regulations associated with this repeal. The rule would also propose to replace those obsolete regulations by soliciting public comment on proposed criteria and practices for which CMPs would and would not be imposed under the Act, as amended by Section 203 of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act).

Pursuant to the SMART Act, civil penalties for non-compliance with Section 111 are up to $1,000 per day, per claimant.  However, no official guidance regarding how these penalties will be determined and enforced has been issued by CMS.  Similar to the Notice issued by the OMB we reported on last week involving Liability Medicare Set-Asides, action to be taken on the Notice of Proposed Rulemaking is set to take place in September 2019.  NuQuest will continue to keep you abreast of any additional developments as they become available.  For  further questions regarding this Notice or for any of your Medicare compliance needs, please contact the NuQuest Legal Team.

Office of Management and Budget Issues Proposed Rulemaking Regarding MSP Compliance Options

Under the title “ Miscellaneous Medicare Secondary Payer Clarifications and Updates,” the Office of Management and Budget issued proposed rulemaking to address Medicare Secondary Payer obligations in the context of automobile and liability insurance, no-fault insurance and workers’ compensation recovery.  The abstract of the proposed rule states as follows:

“This proposed rule would ensure that beneficiaries are making the best health care choices possible by providing them and their representatives with the opportunity to select an option for meeting future medical obligations that fits their individual circumstances, while also protecting the Medicare Trust Fund. Currently, Medicare does not provide its beneficiaries with guidance to help them make choices regarding their future medical care expenses when they receive automobile and liability insurance (including self-insurance), no fault insurance, and workers’ compensation settlements, judgments, awards, or payments, and need to satisfy their Medicare Secondary Payer (MSP) obligations.”

Although there is no legal deadline listed as part of the posting, the timetable for the Notice of Proposed Rule Making is September 2019.   NuQuest will continue to monitor the proposed rulemaking process and will provide updates as they become available.  Should you have any questions regarding the above or need any Medicare compliance assistance, please contact the NuQuest Legal Team.

For more information, go to: https://bit.ly/2QCe6d

 

Success in the CMS Re-Review Process

Pursuant to Section 16.0 of the Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide, Version 2.8, October 1, 2018, COBR-Q4-2018-v2.8, CMS will conduct a Re-Review of a prior WCMSA determination in certain circumstances.  Specifically, CMS will complete this process in cases involving a mistake in the allocation; mathematical error; or when there is missing documentation that pre-dated the WCMSA submission date that could change its value.  CMS will also perform an Amended Review when there are changes to the WCMSA that post-date CMS approval and the case meets certain criteria.  Knowing when and how to use the appropriate Re-Review process is imperative in helping to prevent inaccurate or over-inflated WCMSAs.

One recent example of NuQuest successfully utilizing the appropriate Re-Review option involved an appellate court order that was issued after the date of the WCMSA submission.  The case involved whether claimant required ongoing treatment for a work-related lumbar spine injury.  The appellate court determined that the description of injury was an aggravation of a lumbar sprain and claimant’s intervening injuries as well as a gap in treatment evidenced that claimant’s work injury had resolved.  Highlighting the timeline of the appellate process; the court’s rationale; medical evidence; and the nature of injury, NuQuest was able to successfully advocate for a zero dollar WCMSA.  This resulted in over an $18,000 savings to the client.

Critical review of a WCMSA to determine if a Re-Review is warranted is a necessary part of the Medicare compliance process.  However, identifying these issues is only one part of the equation.  Knowing the appropriate arguments to include in a Re-Review as well as the appropriate mechanism to make this request is equally important to obtain a successful result.

For further information regarding WCMSAs or any Medicare compliance needs, please contact the NuQuest Legal Team.