CMS announcement of the day and the evolution of MSP compliance

Medicare Secondary Payer compliance views have evolved since CMS issued the initial July 23, 2001 Patel memo on the commutation of future benefits in workers’ compensation settlements. For years, many parties mistakenly believed that any projected settlement that met CMS’ workload review threshold must be submitted to CMS for review. Although CMS review may at times be beneficial, it is a voluntary process. Should you elect to submit your proposed MSA to CMS review, CMS’ policies and procedures will apply to the review.

CMS’ policies and procedures have been compiled in several WCMSA Reference Guides. The Guides attribute their content to the following sources:  WCMSA Regional Office Memorandums issued by CMS, information on CMS website, information provided by the Workers’ Compensation Review Contractor (WCRC) and CMS WCMSA Operating Rules.  The application of the WCMSA Reference Guide information in any given CMS submission however may vary from each Region.  This uncertainty, coupled with delays associated with CMS development letters, have resulted in many parties choosing to forego CMS review of MSA proposals.

CMS’ actions at times are also arbitrary.  In the past few months, CMS applied an unannounced “corrected” review process for their zero denied MSAs. Today, CMS issued an announcement confirming that changes had transpired without prior notification and that they will now return to their prior process.  Although we applaud CMS’ announcement that they will return to their prior review process, the fact remains that this type of arbitrary review occurs far too often during the CMS review process.   In light of this, parties should review their MSP compliance strategies in their settlements and determine the best approach for their case.

If the parties decide to forego CMS review of their proposals, the opting out does not mean that parties are shifting injury related Medicare covered expenses to Medicare when closing out their claims. Instead, alternate options are being considered and explored in connection with the settlements.  Rather than applying a “cookie cutter” approach to MSP compliance, parties now consider the best MSP compliance option for their specific settlement. Factors to consider include the facts of the case, the expected future care, the disputes and the parties understanding of the benefits and risks associated with opting out of the CMS review process.  NuQuest’s team of experienced attorneys, settlement consultants and medical group all work together to assist in making the best decision in the claim.

The best MSP compliance decision in a claim may be:  a full commutation non submitted or submitted MSA, no allocation, a compromise allocation that is carved out from the net settlement or our certified NuShield MSA. The certified NuShield MSA provides an allocation that projects future injury related Medicare covered treatment based on the claimant’s current medical records and evidence based medicine standards. Professional or self-administration with support services with NuQuest are required for the certified NuShield MSA in order to prevent premature exhaustion. The certified MSA provides the claimant and the insured/insurer or payor with a hold harmless agreement in the event that Medicare declines to become primary after the MSA is exhausted. It is not an insurance policy nor is it cost prohibitive.

Our objective at NuQuest is to advise our clients of pertinent trends that we spot, vigorously defend our submissions and work product and provide options so that informed decisions may be made. We will keep you advised of further developments.

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