CMS issued an updated WCMSA Reference Guide, Version 2.6 (Guide) on July 10, 2017. The “State-Specific Statutes” provision under Section 9.4.5 Medical Review Guidelines notes CMS’ willingness to recognize WC state-specific statutes with the important caveat that “the submitter has demonstrated that Medicare’s interests have been adequately protected.” If a state-authorized utilization review board varied the treatment recommendation, CMS requested that the submission include an alternative treatment plan to replace the treatment deemed unnecessary by the utilization review board. Failure to include an alternative treatment plan would result in CMS reverting to its traditional projection model. The “State –Specific Statutes” provision also noted that submissions based on state-legislated time limits must be supported by a finding from the appropriate court or state entity that the specific case “does not meet the state’s list of exemptions to the legislative mandate.”
State-specific requirements and the criteria that must be met for the amended review are further discussed in Section 16.0 “Re-Review.” The Note under this section specifically states: “In the event the treatment has changed due to a state-specific requirement, a life-care plan showing replacement treatment for disallowed treatments will be required if medical records do not indicate a change.”
Recent CMS determinations and our CMS communications are providing data on CMS’ interpretation of the above provisions. The most significant change that we have seen involves the Independent Medical Review (IMR) in California. The IMR determination, if unchanged on appeal, is deemed to be the determination of the Administrative Director (AD) on the issue and binding on all parties. In the past, CMS would defer to the findings of the IMR and exclude the denied treatment or drugs in question.
Since the updated Guide was put out, we have seen CMS include IMR denied care citing a lack of replacement treatment options. Further clarification noted: “The CMS position is not whether a carrier demonstrates liability, but whether Medicare would reasonably pay for something in the future that should have been covered as it related to the WC claim.” In situations involving denied treatment, CMS seeks an “alternative treatment that would be acceptable through the IMR process.” A position that no further care is appropriate appears unacceptable to CMS if the treating physician is recommending care.
In light of CMS’ current interpretation of the IMR and utilization reviews, submissions should include an alternative treatment plan. Although utilization reviews generally consider the medical necessity or reasonableness of a specific treatment, the replacement treatment for disallowed treatments can be provided by the AME/PQME physician or by a different type of “state-authorized” utilization review board. Replacement treatment plans may also look to state specific medical treatment guidelines for the conditions. Opting out of the voluntary CMS review process also remains a viable option. We will keep you advised of further developments.