On February 11, 2014, the Centers for Medicare and Medicaid (CMS) announced its proposed changes to the current Medicare Set-Aside Arrangement re-review process, seeking comments and feedback by March 31, 2014.
The current CMS process for WCMSA re-review requests is limited to situations where CMS is notified that the submitter omitted documentation from the original proposal, or when submitter believed there to be a mathematical error made by Medicare’s review contractor. The re-review process in these situations will remain unchanged.
Re-review requests may be submitted to the WCRC at any time for the following reasons:
- A mathematical error was identified in the approved set-aside amount.
- Original submission included case records for another beneficiary
In its proposed expanded process, however, WCMSA re-reviews will be available for a broader array of categories and reasons.
Re-review requests may be submitted to the WCRC ONLY when ALL of the following are met:
- The original WCMSA was approved within the last 180 days,
- The case has not settled,
- No prior re-review request has been submitted for this WCMSA
- The re- review requests a change to the approved amount of 10% or $10,000 (whichever is more).
Re-review requests may be submitted for ANY of the following when ALL qualifying criteria are met:
- Submitter disagrees with how the medical records were interpreted.
- Medical records dated prior to the submission date were mistakenly omitted.
- Items or services priced in the approved set-aside amount are no longer needed or there is a change in the beneficiary’s treatment plan.
- A recommended drug should not be used because it may be harmful to the beneficiary.
- Dispute of items priced for an unrelated body part.
- Dispute of the rated age used to calculate life expectancy
In its explanation, CMS goes on to say that a re-review may be escalated by the WCRC to a CMS Regional Office “in certain situations”. My assumption is that the decision would be at the discretion of the WCRC rather than by submitter request. Examples identified included failure to adhere to court findings, CMS policy disputes, situations where the carrier maintains ‘Ongoing Responsibility for Medicals’ for treatment that has been included in approved WCMSA, etc.
The Good, the Bad and the Ugly
The ‘Good’…. On a positive note, I see any expansion to the re-review process as a good thing for the MSA industry. I have seen countless times when I disagreed with the WCRC’s interpretation of the medical records, or I wanted to dispute prescription drugs or medical procedures that were being prescribed for unrelated body parts or were dangerous to the claimant.
An opportunity to ‘challenge’ in these situations gives me new hope that the countless studies documenting the dangers of long term opioid use may now be introduced as rationale to exclude these drugs from the WCMSA. This may also mark the beginning of the inclusion of state and national evidence based treatment guidelines to establish or dispute the appropriateness of treatment.
The ‘Bad’…. Am I being too optimistic? The bad, as I see it, is that CMS provided us with nothing to explain how the information submitted in the re-review will be analyzed, nor does it list the criteria it would deem as acceptable evidence to justify a change. Therefore, while positive on paper, it remains to be seen whether the expansion provides a real venue to evaluate appropriate care over life expectancy.
And the ‘Ugly’…. Unfortunately, I’ve seen multiple scenarios where re-reviews were submitted in follow up to what we believed to be complete omission of findings and recommendations in the medical records submitted to WCRC. Upon re-review, the reviewer actually increased the allocation. With the expanded re-review process, therefore, does the WCRC have total autonomy to modify/increase any portion of the WCMSA, or will their response be limited to that portion of the WCMSA being challenged?
Tower MSA Partners is currently preparing its response to CMS for submission on or before the March 31, 2014 deadline. In doing so, one of the key points we will advocate to CMS is our strong belief that evidence based national and state medical and pharmacy guidelines should be included an any re-review process as a primary resource to establish appropriate treatment for long term pain management. As such, these should sit at the forefront of any assessment process.
We solicit and welcome your feedback.