On January 4, 2023, the Centers for Medicare and Medicaid Services (CMS) issued a request for proposal (RFP) for its Workers’ Compensation Review Contractor (WCRC) contract.[1] This information reflects that interested parties have until February 6, 2023, at 12:00 p.m. EST, to submit a proposal for this position.[2]
By way of background, the WCRC is the Medicare contractor tasked, in main part, with reviewing Workers’ Compensation Medicare Set-Asides (WCMSA) for the adequacy of proposed medical and prescription drug costs.[3] The current WCRC contractor is Capitol Bridge, LLC which has been serving as CMS’s WCRC contractor since March 19, 2018. According to CMS, the purpose of the WCRC contract “is to procure an impartial entity, not as an agent of the Federal government, to independently price the future Medicare-covered medical services costs related to the WC injury, illness, and/or disease and to price the future Medicare covered prescription drug expenses related to the WC injury, illness and/or disease thereby taking Medicare’s payment interests appropriately into account.”[4] The RFP further reflects that this is a fixed fee contract.[5]
The following provides a very general overview of some key points regarding this RFP which are of likely interest to workers’ compensation stakeholders:
Contract Term
The related Statement of Work notes the contract’s period of performance is “one Base Period plus four one-year option periods” and that there will be “a transition-in period [which] shall be the first 90 days of the contract base year of the newly awarded contract. The transition out period will take place during the last 120 days of the last fully operational, exercised, option year.”[6]
In this regard, the Solicitation, Offer, and Award document indicates that “[t]he period of performance of the contract is April 4, 2023 – April 3, 2028” and provides a further breakdown as follows: Transition-In Activities: April 4, 2023 - July 3, 2023; Base Year: July 4, 2023 - April 3, 2024; Option Year 1: April 4, 2024 – April 3, 2025; Option Year 2: April 4, 2025 – April 3, 2026; Option Year 3: April 4, 2026 – April 3, 2027; and Option Year 4: April 4, 2027 – April 3, 2028.[7]
Workers’ Compensation cases
In general, the RFP documents reflect that “The Workers’ Compensation Review Contractor (WCRC) shall, in accordance with CMS guidelines, evaluate Workers’ Compensation Medicare Set-aside Arrangement (WCMSA) proposals and project the future medical costs, including prescription drugs, related to the workers’ compensation (WC) injury, illness, or disease that would be otherwise reimbursable by Medicare.”[8] As part of the RFP’s Statement of Work (SOW), CMS further states, in part, that the “contractor shall, upon reviewing complete WCMSA proposals, recommend the WCMSA amount for each proposal to CMS for final determination.”[9] In addition, the SOW, states, in part, that the WCRC contractor “shall review all WCMSA proposals within 20 business days inclusive of screening after the initial date of receipt, excluding development of the cases, and provide its recommended amount to CMS.”[10]
The SOW further notes that “[f]or staffing and other resource considerations, the contractor shall anticipate receiving 1,600 new WCMSA proposals per month, which represents forty-two (42) percent of the average workload on hand” and that the contractor “should anticipate a workload from proposals received in previous months that are in various stages of review/completion (e.g., development, etc.).”[11]
On these points, CMS further notes that historically “the WCRC has received approximately 19,000 cases annually, with roughly 14,000 of those reviewing through approval recommendation. There are about 5,000 developments from that group. However, additional cases that come back from development and are completed total roughly an additional 13,000, annually. The disparity between these totals is that some of these cases are returns from previous months or years. Approximately ten (10) percent of all cases will be re-reviewed at some time in the future”.[12]
Optional LMSA, NFMSA
The SOW contains a section related to Liability Medicare set-asides (LMSA) and No-Fault Medicare set-asides (NFMSA). The RFP basically leaves the door open to the possibility of LMSAs and NFMSAs at some future point. Specifically, in pertinent part, the RFP documents state: “Optional Non-Group Health Plan work, inclusive of LMSA and NFMSA, may (or may not) be exercised based upon submission receipts, unrealized legislative Acts, or regulatory and CMS policy changes. Optional Non-Group Health Plan work, inclusive only of LMSA and NFMSA is not expected to be exercised sooner [than] Option Year 1.”[13] As noted above, Option Year 1 is noted as April 4, 2024 – April 3, 2025.[14]
In regard to this section, many will recall, back in October 2022 CMS’s future medicals proposals were withdrawn. These proposals were anticipated to focus, in main part, on LMSAs. The notice withdrawing the proposals did not contain any information regarding if, or when, CMS intended to revisit the issue of future medicals in relation to liability and no-fault cases. Currently, there are no formal LMSA or NFMSA submission or review guidelines in place. Without reading too much into the referenced timeframes stated in the RFP in terms of CMS intentions, the above stated timeline is interesting in that it may possibly give at least some sort of glimpse into when CMS may look to take up the issue again. Of course, we will simply need to monitor if, and when, CMS may decide to revisit the liability future medicals issue.
Other points
In addition to the SOW, CMS’s RFP package includes other documents of note which can be accessed using the link at the beginning of this article. For example, and interestingly, CMS included a copy of their Workers’ Compensation Case Control System (WCCCS) User Guide (Version 6.3, January 20, 2022). At a very high level, the WCCCS is the system that the WCRC works in to set up, price, and track WCMSA cases.[15]
While the full analysis of the WCCCS is beyond the scope of this article, it is an interesting technical resource for those interested in gleaning some additional WCRC operational insights. Of note, the WCCCS User Guide also appears to have included additional functionality for the WCRC to manage and the CMS Regional Offices to track “Non-Submission” cases.[16] This appears to have been implemented to facilitate review and potential enforcement of CMS’s recent addition of Section 4.3 to the WCMSA Reference Guide. Very generally, in Section 4.3, CMS notes, in part, that they view non-submit and evidenced based medicine MSA (EBMSA) arrangements as “a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement” and indicates that they may deny medical services to the full amount of the settlement, minus procurement costs, if these arrangements are used with regard to settlements which meet CMS’s WCMSA review thresholds.[17] Presently, it is unknown how effective CMS is at tracking non-submit MSA and EBMSAs, and whether the agency will develop a process to link Section 111 TPOC data with the WCMSA process. In the meantime, it appears that if CMS is made aware of settlements, it has the functional ability to track them within the WCCCS and potentially note the CMS Common Working File (CWF) accordingly.
Questions?
Verisk will continue to monitor developments on this front and provide future updates as warranted. In the interim, do not hesitate to contact the authors if you have questions.
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On the WCMSA front, we have been an industry leader for over a decade in helping clients reduce WCMSA costs through an array of different services. These services, combined with our advocacy driven approach, have delivered results to help our customers save money and settle cases year after year. In 2021, we delivered over $158M in proactive WCSMA cost-mitigation; over $5M in CMS rebuttal savings; and over $13M in Amended Review savings. To learn more about our cost-mitigation options – including our new (and popular) Provider Outreach program – see our Verisk WCMSA Cost Mitigation Solutions.
