CMS issued an updated Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide, Version 5.1 on July 10, 2017. Section 12.4 of the Guide outlines the new expanded Re-Review process for CMS approved cases , as promised by CMS in its December 21, 2016 Alert. Under this Section, a party may now seek a re-review when the current care projections differ by 10% or $10,000, whichever is greater, from the projections in the CMS determination. The difference may be higher or lower.
In order to seek an “Amended Review”, the following requirements must be met:
- The original submission must have occurred between one and four years before the date of the Amended Review request.
- Cannot have a prior request for an Amended Review.
- The change in treatment must result in the greater of either a 10% or $10,000 change in the prior CMS determination amount.
The portal process for completing the Amended Re-Review request requires a line by line review of the CMS determination projections along with the entry of the new treatment projections and reference to specific supporting documentation. Since parties are still able to seek a re-review when they disagree with the CMS determination, this right will presumably apply to the Amended Review determination.
The updated Guide also revised the case re-opening process for submissions that have been closed by CMS. Section 12.3.5 provides that parties will have to resubmit the entire case, along with all associated documentation, when more than 12 months have passed since the date of the last closeout letter. This is essentially a new CMS submission in the case.
NuQuest offers the “Amended Review Submission Service” upon request. Our Service Coordinators and Settlement Consultants will also work with you to determine the optimal approach for your case. Although the CMS “Amended Review” is a welcome addition, the NuShield Certified MSA may be a better option.
The Commercial Repayment Center (CRC) Recognizes California Insurance Guarantee Association v. Sylvia Mathews Burwell, et. al., 2:15CV01113ODW (“CIGA”):
Recently, NuQuest has received favorable initial determinations and redeterminations that agree certain dates of services should be removed based upon the ruling in CIGA. The federal district court in CIGA found that Medicare’s practice of requiring reimbursement for dates of services simply because they included a related diagnosis code among other unrelated codes was unlawful. This decision is further discussed in our previous blog posts:
Medicare’ Conditional Payment Recovery Tactics Challenged by CIGA
Is the Pot Calling the Kettle Black?
What is significant to report is that the CRC has agreed to remove certain dates of services from its statement of reimbursement because recovery was based only upon the date of service listing related diagnosis codes among unrelated codes. This means that if Medicare is seeking reimbursement for a date of service that includes bundled related and unrelated diagnosis codes, the debtor should dispute the charges based upon the CIGA ruling and file its appeal within the required timeframe.
Although evidence to support the removal of the charges may not be required, if the debtor has or can obtain evidence that support: (1) the dates of service did not include treatment related to the claim; or (2) that only a portion of the charges are related, such evidence should be provided to the Medicare contractors. Evidence should be obtained especially if filing a request for reconsideration to a Qualified Independent Contractor. Evidence, among other things, could be: medical records, bills, statements from the providers or claimant that certify the dates of service were for non-claim related treatment.
We will keep you posted on any further developments.
Join us on July 10th, 2017 at 1:00 (CST) Register here for a webinar that addresses the proper administration of an MSA. We will review CMS’ specific guidelines on this issue and address common mistakes that may be made in self-administration. We will also go over tools that may assist in the administration process.
Rasa Fumagalli, JD, MSCC, NuQuest’s Director of Compliance, holds a law degree from IIT’s Chicago Kent College of Law with an undergraduate business degree from the University of Illinois. Prior to joining NuQuest, she spent over twenty years specializing in workers’ compensation defense work in the Chicago area. Rasa utilizes her extensive experience in handling workers’ compensation cases when consulting with clients about Medicare Secondary Payer (MSP) compliance issues. She is admitted to practice law in the State of Illinois and is an active member of the National Alliance for Medicare Set- Aside Professionals (NAMSAP) organization, serving on the Evidence-Based Medicine, Communications and Liability Committees.
Over the past six months or so, the MSP industry as a whole has experienced significant delays in securing CMS review of proposals. Most of the delays have been due to a surge in development letters seeking reserve information and different formatting of payment histories. These issues were brought to the attention of CMS on several occasions. We are pleased to announce that in our recent call with CMS’ management, we were advised that the WCRC would no longer seek the reserve information nor the one page payment history summaries. Files that were pending review solely due to the improper reserve requests would be promptly reviewed. Files that were pending review based on other missing items would remain in development status until CMS received sufficient information to complete their review. CMS also agreed to have a more holistic review of the information provided, focusing on substantial compliance, as opposed to pure formatting issues. New uniform development letter options were also being drafted by CMS’ counsel in order to ensure a more uniform approach to the material sought in development letters.
CMS’ willingness to address the issue is a step in the right direction. We remain cautiously optimistic and will continue to monitor the situation closely. We will keep you advised.
The administration of a Workers’ Compensation Medicare Set Aside (WCMSA) was considered in a recent California Workers’ Compensation Appeals Board (WCAB) decision. In the Muniz Villalpando v Doherty Brothers; Martin Dusters; State Compensation Fund case, ( 2017 Cal. Wrk. Comp.P.D.Lexis ADJ599176, 2396484, 795039), the applicant sought reconsideration of the workers’ compensation law judge’s (WCJ) denial of his request to change the administration of his WCMSA funds from a professionally administered account to one that was self-administered . The WCAB returned the matter to the trial level so that the WCJ may review the terms of the professional administration contract that address a change in administration.
By way of background, applicant Muniz Villalpando settled his claims in August of 2011. The settlement terms included the funding of the CMS determined WCMSA and the parties’ agreement that the WCMSA be professionally administered through Bridge Pointe. In December of 2016, Muniz Villalpando filed a pro se Petition for Reconsideration before WCJ Ortega. The issues addressed in the hearing involved the appropriateness of the administration, the WCAB’s jurisdiction to set aside the MSA and the appropriateness of self-administration of the WCMSA.
During the hearing, the defense presented testimony from a Bridgepointe /NuQuest witness regarding the types of payments that may be properly made from a WCMSA fund. Since the payments may only be for injury related and Medicare covered services and drugs, services that did not meet this two prong test may not be paid from the WCMSA account. In denying Muniz Villalpando’s Petition for Reconsideration, WCJ Ortega noted that Bridge Pointe/NuQuest did not inappropriately manage their custodial obligations within the Compromise and Release settlement agreement. In light of this, no further issues were addressed by WCJ Ortega.
The WCJ Ortega recommendation highlights the challenges that some claimants may face when attempting to administer their own WCMSA accounts. Not every treatment is Medicare covered or related to the workers’ compensation claim. CMS’ specific guidelines that address the proper administration of a Medicare Set Aside (MSA) account must also be followed. We will keep you advised of further developments in this case.