Since the new WCRC contractor took over, we have seen an increase in the amount of diagnostics and physical therapy allocated by CMS resulting in many counter higher determinations. These counter higher amounts seem to be an increase between 5 to 10% of the submitted MSA amount.

Per the WCMSA Reference Guide, x-rays are allocated every 3 to 5 years and yearly if there was or will be a major joint replacement. MRIs are allocated every 5 to 7 years. CMS states these are guidelines only and determinations are made on a case-by-case basis. Other factors are considered such as the life expectancy, past surgeries, functional status, age of injury, treatment patterns, and provider recommendations. The trend we are now seeing is x-rays allocated every 3 years and MRIs allocated every 5 years regardless of these other factors. With the prior review contractor, these factors appeared to be taken into consideration as there were fewer counter higher determinations based on an increase in diagnostic services.

There are no physical therapy guidelines provided in the WCMSA Reference Guid, however, based on years of tracking CMS determinations, physical therapy (PT) is usually allocated at 12 sessions every 5 years for exacerbations. Additional physical therapy is also included post-operatively with the amount based on the type of surgery; 18 sessions for an arthroscopy; 36 sessions for a total knee replacement or total shoulder replacement; 24 sessions for cervical, thoracic or lumbar surgery; and 24 sessions for a total hip replacement. The prior review contractor seemed to take the type of injury and treatment patterns into consideration and accept the submitter’s allocation for PT if it was reasonable. The new review contractor appears to be increasing PT by allocating 12 sessions every 5 years for every orthopedic condition regardless of the type of injury and treatment patterns.

Here are a few example of CMS’ counter higher determinations based on increased diagnostics and/or PT.

Date of injury noted as 08/02/2012 for cumulative trauma with the following diagnoses: bilateral carpal tunnel syndrome, bilateral shoulder pain, bilateral knee pain, bilateral ankle/foot pain, cervicalgia, and low back pain. The life expectancy (LE) is 13 years. Future medical treatment included bilateral shoulder arthroscopies and bilateral ankle, right knee, and lumbar surgery. CMS included routine PT at 96 sessions for life expectancy; post-operative left shoulder PT at 18 sessions; post-operative right shoulder PT at 18 sessions; post-operative right knee PT at 18 sessions; post-operative right ankle PT at 18 sessions; post-operative left ankle PT at 18 sessions; and post-operative PT at 24 sessions for the lumbar surgery. X-rays were included every 3 years or a total of 4 in LE for the following body parts: cervical spine, bilateral shoulders, bilateral wrists, lumbar spine, bilateral knees, and bilateral ankles. MRIs were included every 5 years or a total of 2 in LE for all of these body parts except the wrists. The total amount of PT included in the allocation is 210 session in a 13 year LE. The submitted MSA amount was $93,483 and did not include the lumbar surgery per carrier’s request. The CMS counter higher determination was $180,217 as a result of the inclusion of the lumbar surgery and significant amount of diagnostics and PT.

Date of injury is 04/06/2007 for bilateral shoulder pain, bilateral knee pain, cervicalgia, and low back pain. LE is 19 years. Future medical treatment included bilateral knee arthroscopies, right shoulder arthroscopy, and lumbar decompression and fusion. 36 sessions of PT were included for exacerbations. Post-operative PT was included as follows: 24 sessions left knee arthroscopy; 24 sessions right knee arthroscopy; 24 sessions lumbar surgery; and 36 sessions for right shoulder arthroscopy. This is a total of 144 PT sessions for a 19 year LE. Submitted MSA amount was $246,941 with CMS counter higher amount of $269,957 due to increased PT.

Date of injury is 02/20/2015 for left shoulder pain, left wrist pain, left hand pain, left thumb sprain, left middle finger sprain, left ring finger sprain, left little finger sprain, and cervicalgia. LE is 12 years. Current treatment is medication management only with pain management.  24 sessions of PT were included for each of these body parts: left shoulder, left wrist, and cervical spine or a total of 72 sessions in LE. Submitted MSA amount was $21,106 with CMS counter higher amount of $28,578 due to increased PT.


Join Us on January 31st – NuShield Certified Compromise Webinar

Join Jennifer Shymanski, JD, CMSP, and Rasa Fumagalli JD, MSCC for a webinar on January 31st, 2018 from 1:00 to 1:30 pm CST to learn about the NuShield Certified Compromise MSA. Register here. The Certified Compromise MSA is an allocation that is apportioned from the net settlement. By comparing the various damage elements in a claim, the Certified Compromise MSA avoids a cost shift of injury alleged medical expenses to Medicare while taking into account the disputed nature of the settlement.

Jennifer Shymanksi, JD, CMSP, NuQuest’s Director of Implementation and Strategy, holds a law degree from Northern Illinois University College of Law and a Bachelor of Arts in Political Science from the University of Wisconsin – Stevens Point.  She is admitted to practice law in the State of Wisconsin.  Prior to joining NuQuest in March of 2010, she spent over ten years at Nationwide Insurance working with both workers compensation and personal liability claims teams.

As Director of Implementation and Strategy, Jennifer utilizes her extensive experience in claim handling and negotiation to work with clients in choosing the correct products and services to address their particular Medicare Secondary Payer Compliance issues.  Jennifer’s focus is on assisting clients in designing their MSP compliance programs including training and implementation of those programs.  She frequently attends file conferences and provides continuing education presentations.

Rasa Fumagalli, JD, MSCC, NuQuest’s VP of MSP Compliance and Customer Relations, 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 was recently elected to the Board of Directors for the National Alliance for Medicare Set-Aside Professionals (NAMSAP).  She is an active member of the Evidence-Based Medicine, Communications, and Liability Committees.


Centers for Medicare and Medicaid Services (CMS) will Introduce New Commercial Repayment Center (CRC) Contractor

On January 5, 2018, CMS announced that it will hold two webinars discussing the new CRC contractor. On January 17, 2018, CMS will introduce the CRC contractor to Group Health Plan (GHP) stakeholders. On January 18, 2018, CMS will introduce the CRC contractor to the Non Group Health Plan (NGHP) stakeholders. A link to the January 17, 2018, group health plan announcement can be found here. The January 18, 2018 Non Group Health Plan announcement may be found here.

CRC Transition Delayed to 2/9/2018

As a follow up to the transition of the Commercial Recovery Center’s (CRC) operations to Performant Financial Corporation (Performant), NuQuest was recently advised that Performant’s operational start date has been delayed. Performant begins its operation of CRC 2/9/2018.

CGI Federal will continue to handle CRC’s operations until 2/8/2018. At that time, pending appeals will be transferred to Performant for handling. If there is a pending appeal prior to the transition, CRC’s 60-day response target timeframe still applies to the pending appeal. This means that if an appeal of initial determination is filed on 1/5/2018 and CRC did not provide a response prior to the transition, Performant still has a target response date of 3/6/2018.

As a part of the transition, NuQuest was advised that CRC will have new address, telephone, and fax numbers.  Once this new contact information is available, we will provide an update. An additional summary of this transition can be found here: http://mynuquest.com/conditional-payments/new-commercial-repayment-center-crc-contractor-192018/.

NuQuest’s Perseverance Pays Off

Our NuQuest team is always ready to seek a correction of an erroneous CMS determination.  A recent re-review victory is highlighted below.

Claimant filed two separate workers’ compensation claims against one employer that had two different workers’ compensation carriers for two different accident dates. Claimant sought treatment for both claims with the same treating physician. In an effort to separate the liability of the carriers and claimant for each claim, the treating physician noted in his records which medications belong to each claim. NuQuest submitted a WCMSA proposal that excluded a prescription projection based upon the medical records stating that certain prescriptions were being prescribed in relation to the separate claim and additionally, that an IMR determined that the medications were unreasonable and unnecessary. Medicare’s determination included a prescription allocation for the medication prescribed for the separate claim stating that because payments were made for the medications and there were no alternative treatment recommendation, the IMR was insufficient to remove the medications.

A re-review was submitted with the court award for the separate claim and an additional letter from the doctor that predated the WCMSA submission, again identifying which medications belong to each claim. After review, Medicare agreed that a prescription allocation was unnecessary because the medications belonged to a separate claim.

As indicated by this re-review, letters from prescribers will be sufficient to exclude medications from an MSA, in certain circumstances. Parties to a settlement should consider if the treating physician or prescriber will provide a written statement identifying exactly what is related to a claim.  This is good practice regardless of whether a proposed MSA is voluntarily submitted to CMS for review.