CMS Releases Updated WCMSA Reference Guide v2.3

January 12, 2015

On January 6, 2015, CMS released an updated version of the WCMSA Reference Guide (COBR-Q1-2015-v2.3).  A complete list of the changes can be found in Section 1.1 (p. 7) of the Guide and include language changes and clarifications as follows:

  • Corrected reference from 42 CFR 411.46 to Section 1862(b)(2) of the Social Security Act.
  • Clarified reference to costs related to the workers’ compensation claim, rather than the compensable injury.
  • Clarified reference to future medical items and services as “Medicare covered and otherwise reimbursable.”
  • Clarified that CMS approves the WCMSA amount, not the WCMSA, upon submission of a request.
  • Correspondingly, clarified language referring to submission of a proposed WCMSA amount, rather than a WCMSA proposal.
  • Restated the comparison of fee-schedule vs. full-and-actual-costs pricing as the basis of pricing the proposed amount, rather than the basis of payment from an approved WCMSA account.
  • Clarified attestation vs. accounting wording.
  • Clarified procedural results when Medicare is not provided with information in response to a development request.
  • Removed the word “form” from references to documents that are not forms.
  • Added language to address schedule change for hydrocodone compounds from schedule III schedule II. See Section
  • Changed deadline for responding to development requests for submission through the WCMSA Portal to 20 from the previous 10 days. See Sections 9.4.1 and 9.5.

What’s the Significance?

Of the updates noted above, the only items of significance to those who interact with CMS on a daily basis, are the last two changes listed – language changes as a result of the reclassification of hydrocodone to Schedule II,  and the extension of the deadline for responding to development requests.

Reclassification of Hydrocodone

As documented in Section,  Hydrocodone products now require new prescriptions at intervals of no greater than 30 days, however, a practitioner may issue up to three consecutive prescriptions in one visit, authorizing the patient to receive a total of up to a 90-day supply of a C-II prescription.  For all new cases submitted after January 1, 2015, the WCMSA guidelines require allocation of a minimum of 4 healthcare provider visits per year when schedule II controlled substances (including hydrocodone combination products) are used continuously, unless healthcare provider visits are more frequent per medical documentation.

The allocation of 4 physician visits per year for ongoing monitoring has been a standard CMS response trend for more than a year, and is commonly seen for long term pain management.  What is different here, and of potential concern, is the final statement “unless healthcare provider visits are more frequent per medical documentation.”  We have seen a recent CMS response trend in which 12 physician visits per year were allocated when medical records indicated that the patient was seeing  a healthcare provider monthly, even if only to obtain prescriptions.  With the number of patients taking hydrocodone, and the April 5, 2015 cutoff for hydrocodone refills  (6 months after the October 5, 2014 reclassification), is it possible that adjusters may see an increase in the number of office visits?

When long term use of hydrocodone products exists and patients are seeing healthcare providers at more than a 90 day frequency, with office visits only to obtain new prescriptions, adjusters should be aware that this practice may have a negative impact on the number of physicians allocated on the  MSA.  As part of the Tower MSA Partners pre-MSA review process, the issue of office visit frequency is identified as a potential cost driver and efforts are made to leverage the 90-day prescription authorization and reduce the number of  office visits documented in the medical records before finalizing the MSA.  This will ensure that CMS will respond with no more than the published 4 visits per year.

20 Day Deadline for Development Requests

According to the WCRC, the five most frequent reasons for development requests include the following:

  1. Insufficient or out-of-date medical records (CMS requests current payout and will expect all associated medical records).
  2. Insufficient payment histories, usually because the records do not provide breakdown for medical, indemnity, or expenses categories;
  3. Failure to address draft or final settlement agreements and court rulings in the cover letter or elsewhere in the submission;
  4. Documents referred to in the file are not provided—this usually occurs with court rulings or settlement documents;
  5. Submissions refer to state statutes or regulations without providing sufficient documentation, i.e., a copy of the statute or regulation, or notice of which statutes or regulations apply to which payments.

Regardless of the date of the completion of the MSA, Tower’s pre-CMS submission process will include a review of all recent treatment records to ensure that the allocation accurately reflects current treatment and up to date prices.  We also look for gaps in treatment that could result in CMS requests for primary care physician records.  When identified, we attempt to address this before CMS submission, providing the necessary documentation in the MSA to mitigate development requests and slower CMS turnaround times.


Tower will continue to benchmark CMS response trends externally, as well as measure internal submission / response accuracy and inclusion by evaluating  each procedure, service and medication against CMS’s response frequency and price, acknowledging that we do not seek 100% CMS acceptance.  Our goal is to proactively identify and address cost drivers before CMS submission, to provide clear documentation of optimized treatment, and to prepare an MSA that appropriately protects Medicare’s interest.

Is The Tidal Wave of CMS Development Letters Behind Us?

May 14, 2014

In case you didn’t hear us shouting from the rooftop, Tower MSA Partners (as well as other companies across the MSA industry) was notified Tuesday, May 13, 2014 that full MSA approval had been given for approximately 100 cases, more than 50 of which were in various stages of development request processing.  While this was certainly a welcomed announcement, I believe strongly that it was not an arbitrary decision by CMS, nor was it achieved by a few large companies.  I see this accomplishment as the result of the combined and focused efforts of many in the MSP compliance industry.  

Where Do I Begin?

As many of our clients have become painfully aware, development requests have been a major issue for Tower, as well as every carrier, employer and MSA provider in our industry, since late 2013.  In early January, I discussed this new trend via a blog article ( ) to explain what we were seeing as a company.  In follow up to the article, I took this information to my industry peers, encouraging their participation to track the trend through my involvement with the Data and Development Committee of NAMSAP (National Alliance of MSA Professionals).   

An Industry Moved to Action

Data capture of development requests began in January with analytics by the DDC for the next 90 days.  At the same time, the NAMSAP Board of Directors asked that I prepare an article to be published in NAMSAP’s national newsletter, and also to help author a letter to be submitted to CMS on behalf of the NAMSAP BOD.  The article’s intent was to communicate the source and impact of development letters among our membership, and to encourage readers to share their experiences in the form of actual data.  The letter to CMS presented aggregated, experiential data to demonstrate the effects of the WCRC’s actions, and to communicate the settlement obstacles being created by this process (not the least of which was the request for HIPAA protected primary care physician medical records). 

Communication Through Data Analytics

Through the efforts of the DDC to summarize the data obtained from multiple companies across our industry, the letter submitted by NAMSAP’s BOD to CMS provided clear evidence of the impact of the actions of the WCRC on settlement initiatives.  We then requested that CMS work with our industry to reestablish a strategy that included only ‘injury related’ medical and pharmacy history, and followed the published standards defined in the March 2013, November 2013 and February 2014 editions of CMS’s own WCMSA Reference Guide as their only criteria to ensure that Medicare’s interests are adequately protected.   

While we cannot confirm that CMS’s recent actions were in response to the initiatives pursued by NAMSAP, or through the efforts of a single company, we certainly believe industry involvement for the benefit of all stakeholders was the right course of action and are thrilled with the outcome.  We are pleased to have been an active participant in this process.

Lessons Learned?

As the MSP compliance partner for employers, TPAs and carriers, our primary responsibility is to prepare and submit Medicare Set Asides that to the best of our knowledge, ability and expertise ensure that Medicare’s interests are adequately protected when settling future medical claims.  From a professional ethics perspective, this means doing what is reasonable on behalf of the claimant.  For Tower, we describe this as, “helping clients balance care, cost and compliance when settling claims that involve Medicare beneficiaries”.       

One of our client’s website taglines reads as follows, “We strive to ensure that injured workers get the right care at the right time—and we focus on getting it done the right way. It’s our commitment.”  I’ve read this quote many times and strongly believe this is the goal of most in our industry….. do what is reasonable.  And in the end, regardless of CMS submission and approval, I believe this will provide adequate evidence of our efforts to protect Medicare.

Looking ahead, we must now prepare our team and our clients for the next wave of CMS submissions.  How do the experiences of the past 6 months impact our internal processes going forward?  Was the development letter barrage truly a ‘ghost hunt’, or is there something to be learned from the WCRC’s actions?   This will be the focus of our attention in the coming weeks.