The Centers for Medicare and Medicaid (CMS) issued a new memorandum that will affect pricing determinations for TENS (Transcutaneous Electrical Nerve Stimulation) units for the treatment of Chronic Low Back Pain (CLBP) included within the Workers’ Compensation Medicare Set-Aside (WCMSA) that have been submitted to CMS for approval.

On June 8, 2012, CMS issued a new Decision Memo that defined CLBP as “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.” CMS further stated that a TENS unit was not “reasonable and necessary for the treatment of CLBP under section 1862(a)(1)(A) of the Social Security Act.”

TENS is the use of stimulating pulses across the surface of the skin produced by a device to stimulate the nerves for therapeutic purposes. TENS help stimulate your body to produce higher levels of Endorphins. The TENS units are small, battery operated devices that deliver these stimulating pulses across the surface of the skin. It has been an ongoing dispute over the years as to whether TENS units do more than act like placebo’s, and whether they actually treat and cure CLBP.

CMSs New Pricing Determination will affect the WCMSA’s proposal as follows:

1. Workers’ Compensation cases settled prior to June 8, 2012:

   “For those Workers’ Compensation cases settled prior to June 8, 2012, and where the settlement included pricing for TENS for CLBP, CMS will consider funds spent for TENS for CLBP by beneficiaries and claimants as being an appropriate expenditure of funds as part of the WCMSA.”

2. Workers’ Compensation Cases Settled After June 8, 2012:

   “For those Workers’ Compensation cases that were not settled prior to June 8, 2012, and where the WCMSAs proposal includes funding for TENS for CLBP as part of the WCMSA, CMS will re-review the cases and remove pricing for TENS for CLBP. (Regional Offices shall obtain from Submitters requests for a case re-review, along with a signed statement indicating a settlement had not occurred prior to June 8, 2012.)”

It is important to note that in the event CMS does re-review a WCMSA for removal of a TENS unit for CLBP, the claimant may NOT use the funds from their WCMSA to pay for the TENS for CLBP. If a claimant uses the funds for the TENS, this would result in an inappropriate expenditure of funds.

For additional questions on the use of TENS units as treatment for chronic low back pain, and its implications on future medical treatment and the WCMSA, please contact Tower MSA Partners at 888-331-4941 or email us at info@towermsa.com. For the full text of the CMS Decision Memo, see Decision Memo for Transcutaneous Electrical Nerve Stimulation (TENS).