Examining CMS Submission and Appeals

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Medicare has established workload review thresholds in determining whether the Medicare Workers’ Compensation Review Contractor (WCRC) will review proposed future medical allocations and provide a recommended Medicare Set-Aside (MSA) amount. If a workers’ compensation settlement involves a Medicare beneficiary and exceeds $25,000.00, the WCRC will review the parties’ settlement and proposed future medical allocation. The WCRC will then advise if the proposed future medical allocation adequately prevents a cost shift of injury-related medical expenses to Medicare.

The WCRC will also review a workers’ compensation settlement if the claimant has a reasonable expectation of Medicare enrollment within 30 months and the settlement exceeds $250,000.00.

With respect to workers’ compensation claims, the workload review threshold is not a safe harbor. This means that if a claim falls outside of these categories, the parties to settlement must still consider Medicare’s interests when settling a claim and prevent a cost shift of injury-related medical expenses. This is also true if the claim surpasses a workload review threshold, but is not submitted to Medicare for review.

Currently, the WCRC will generally only review workers’ compensation claims and will not review liability or no-fault settlements. However, the Medicare Secondary Payer Act and supporting regulations also require parties to no-fault and liability claims (including selfinsured) to consider Medicare’s interests and prevent a cost shift of injury-related expenses to Medicare. In the near future, Medicare may begin to review proposed liability future medical allocations and provide recommended liability MSA amounts.

The above information does not mean parties to a workers’ compensation settlement must submit a WCMSA proposal to Medicare if a claim surpasses a review threshold. In fact, as noted by Medicare in its most recent reference guide, 2.5, “[t]here are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review.” If the parties choose to submit a proposed MSA to Medicare, compliance with the CMS’ established policies and procedures is expected.

If Medicare has reviewed a MSA proposal and the parties do not like the recommended amount provided by Medicare, can the parties appeal the decision?

If the parties disagree with Medicare’s recommended MSA amount, the claimant can provide the Medicare regional office that made the recommendation with additional documentation to justify the original proposed amount. The regional office will then decide if the additional information justifies the proposed MSA amount. Another option is for the parties to request Medicare to re-review its recommended MSA amount. Currently, the reference guide provides two circumstances where a re-review request will be examined by Medicare:

(1) the parties believe CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred); or

(2) the parties have additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination

Re-review policies are expected to change in the near future to provide additional circumstances where a re-review request is appropriate. Additionally, we have had limited successes in reducing recommended MSA amounts with documents and evidence that is dated after submission of the original proposal. We will keep you advised as we receive updated information on re-review procedures.