Review process for fully and partially denied claims addressed in Version 2.6 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide released July 31, 2017.
In the past, CMS generally agreed that no WCMSA was needed in a denied claim that did not have any medical or indemnity payments made in it. For a few months in 2016, CMS departed from this analysis . Development letters were issued seeking the following: information showing an absence of payments by the carrier and /or a Court order issued after hearing on the merits that relieves the carrier of liability or a recommendation from the treating physician that no further injury alleged care is required in the claim. After inquiries by the MSP compliance industry, CMS issued an Alert in October of 2016 acknowledging that changes in their review should not be made without notice to the industry.
The recent revision of Section 4.1.4 of the WCMSA Reference Guide Section 4.1.4 entitled “Hearing on the Merits ” provides this notice of change to the industry. The Section now states that “CMS must have documentation as to why disputed cases settle future medical costs for less than the recommended pricing.” Although this Section reiterates CMS’ general willingness to accept the terms of settlement after hearing on the merits, if Medicare’s interests are adequately addressed, it specifically notes that this analysis will also be applied to all denied liability cases, whether in part or in full. Based on this change, we recommend that parties include a letter that explains the legal and factual basis for the disputed settlement in all zero dollar waiver submissions to CMS. Whether CMS will accept the validity of the dispute is questionable.
Since CMS review is voluntary, there are other options for considering Medicare’s interests in disputed claims. The options include the use of a compromise allocation or a certified non-submitted MSA. Please contact our Settlement Consultant team at firstname.lastname@example.org, to discuss alternative options for considering Medicare’s interests.
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.
State workers’ compensation laws define the parameters of an employer’s potential liability in a claim. As such, they play a role in determining the amount of a future Medicare Set-Aside that may be funded in connection with a complete settlement.
Arizona’s legislature recently repealed Section 23-941.01 that limited the parties’ rights to settle out future medical care in undisputed claims. This provision prohibited the closure of active medical care, such as surgery, in undisputed claims and only allowed the release of future supportive medical maintenance benefits.
The amended Section 23-041.01 provision allows represented employees to settle future medical but requires the settlement to include the following attestations:
- “The employee understands the rights settled and released by the agreement and was represented by counsel.
- The employee has been provided information from the carrier, special fund or self-insured employer that outlines any reasonable anticipated future medical, surgical and hospital benefits relating to the claim ant the projected cost of those benefits and that provides an explanation of how those projected costs were determined.
- The employee understands that monies received for future medical treatment associated with the industrial injury should be set aside to ensure that the costs of such treatment will be paid.
- The parties have considered and taken reasonable steps to protect any interests of Medicare, Medicaid, the Indian Health Service and the United States Department of Veterans Affairs, including establishing a Medicare Savings Account if necessary.
- The parties have conducted a search for and taken reasonable steps to satisfy any identified medical liens.”
When a claimant is unrepresented, the Administrative Law Judge will meet with the claimant to make specific findings regarding whether the above paragraphs are satisfied. Additional requirements and provisions for handling disputed claims are also set forth in the complete amendment.
The repeal will be effective from and after October 31, 2017. (Title 23, Chapter 6, article 3, Arizona Revised Statutes)