WCMSA Reference Guide; Challenges, Pitfalls and the Industries Response

The guide was created to provide a resource to submitters on what documentation is to
be provided with the submission and how the current Workers’ Compensation Review
Center (WCRC) completes its review process. This article will try to make sense of the
CMS reference guide released on May 29, 2014, and why the submission process isn’t
working as it was intended.

Medicare remains the secondary payer and is prohibited under the MSP to make payment
where payment has already been made. The WCMSA submission process deals with the
future medical services related to a WC settlement and allows, on a voluntary basis, to
obtain certainty that the amounts set aside for future Medicare allowable expenses are
appropriate. Any claimant who receives a settlement with an amount allocated for future
medicals must take Medicare’s interest into account. If Medicare’s interests are not
taken into consideration, Medicare may refuse to pay for future medical until the entire
settlement funds have been exhausted.

The Medicare Secondary Payer (MSP) is the term used to describe the statute of the
Social Security Act that Medicare may not pay for medical expenses if, when payment
“has been made or can reasonably be expected to be made under a workers’ compensation
plan, an automobile or liability insurance policy or plan (including a self-insured plan),
or under no-fault insurance”. (See 42 U.S.. § 1395y(b)(2) and § 862(b)(2)(A)(ii) of the
Social Security Act for the full definition).

The primary reason to submit a proposed MSA to CMS for review is to obtain approval
of the amount that must be appropriately exhausted; it is important to note that the
process is not required.

According to the May 29, 2014 reference guide, “There are no statutory or regulatory
provisions requiring that you submit a WCMSA amount proposal to CMS for review. If
you choose to use CMS’ WCMSA review process, the Agency requires that you comply
with CMS’ established policies and procedures in order to obtain approval.” If the
parties choose to utilize the CMS submission process, they must comply with the CMS
guidelines set forth in the guide and CMS memos.

CMS submission process and required documents:
The proposed MSA amount with supporting documents can be submitted via the
WCMSA Portal or via CD to the COB&R. Once the WCRC receives the proposed
MSA, it will determine if all necessary information is correct, such as: claimant contact
information, date of injury, life expectancy, settlement meets threshold, administration
method is provided, funding method is provided, state of jurisdiction was provided,
treatment records are valid and up to date, and current pharmacy records. The WCRC
will then complete an independent review of the documentation provided and submit
their recommendations to the appropriate Regional Office. The review process appears to
be simple enough – let’s take a closer look.

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