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CMS releases the WCMSA Reference Guide (Version 3.9) – various updates are made, including removing the time limit on Amended Reviews

The Centers for Medicare and Medicaid Services (CMS) has released the Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.9, May 15, 2023).

As outlined more fully below, CMS has made various updates to different aspects of its WCMSA process. Perhaps most significantly, CMS removed the maximum time limit for eligibility regarding its Amended Review Process which will now provide parties with additional opportunities to use this process going forward to potentially reduce prior CMS WCMSA counter-higher approvals for qualifying cases. In addition, CMS provides new information regarding frequency calculations for intrathecal pumps, spinal cord stimulator, and peripheral nerve stimulator replacements.

U.S. dollar bills spread across the entire image

The below provides an overview of the Version 3.9 changes, including special focus on the potential impact of CMS’s Amended Review changes and its clarifications regarding intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacement frequency calculation. In addition, information is provided on our “Second Look” service which can help you take advantage of CMS’s Amended Review process.

Summary of Updates

CMS lists the updates made in Section 1.1 of the new Reference Guide as including the following:

  • All WC letters currently signed with [CMS’s] Director of Financial Services Group name and signature image have been updated to reflect the current CMS customer service contact information (Appendix 5).
  • The CMS Regional Offices are no longer responsible for approving initial determinations. Process language and contact information have been updated throughout the guide (Sections 9.0, 9.4.6, 9.5, and 18.0, and Appendix 5).
  • Clarification has been provided regarding intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacement frequency calculation (Section 9.4.5).
  • The maximum time limit for eligibility has been removed from the Amended Review process (Section 16.3).
  • The 94585 ZIP code has been added to the Walnut Creek Medical Center in the table listing major medical centers (Appendix 7).
  • The CDC Life Table link was updated (Section 10.3).

Amended Review – Time limit removed

By way of background, CMS introduced the Amended Review process in 2017 which, in general, allows parties a one-time request to submit new medical documentation to adjust a prior WCMSA approval for cases meeting the Amended Review requirements. Prior to CMS’s newly announced change, the maximum time limit was six years. Now, as noted, CMS has removed this limit thereby allowing the parties to use this process if the conditional approval is at least 12 months prior to the request for the Amended Review.

From a practical claims handling standpoint, this a significant and much welcomed change which potentially opens new opportunities to settle out older claims where a CMS approval or counter-higher caused a settlement to stall. With this new update, now may be an opportune time to review any claims with a CMS approval on file, which did not settle, but shows reductions in treatment costs or changes in the claimant’s treatment regimen.

Generally, opportunities to leverage the Amended Review may exist if the file shows:

  • Surgeries or procedures for implanted devices have occurred after the original WCMSA approval
  • Reductions or changes in medication resulting in less monthly spend
  • Reserves have reduced over time
  • Treatment has stabilized and reduced

To review CMS’s Amended Review criteria in full, see the information contained in the endnote to this sentence.1

CMS amends their calculation to increase the frequency of intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacements in WCMSAs

As noted, CMS has also made what they label as “clarifications” regarding intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacement frequency calculation (Section 9.4.5). By way of background, prior to the release of WCMSA reference guide version 3.9 CMS historically calculated the placement and revision frequency of intrathecal pumps, spinal cord stimulators, and peripheral nerve stimulators by dividing the injured worker’s adjusted life expectancy by 7 (or 9 years for rechargeable devices) and rounding down.2 For example, an individual with a 24-year life expectancy would expect CMS to include one placement and two replacements in their WCMSA. Now, per CMS’s Version 3.9 updates, if an intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator has not already been placed, CMS will assume that the device will be placed within the first year following settlement.3

In terms of practical claims impact, this means that CMS adjusted their calculation to subtract one year from the injured worker’s life expectancy for device placement before dividing the remaining whole number by 7 (or 9 years for rechargeable devices) and rounding down to determine the revision frequency.4 Therefore, CMS is leveraging the assumed placement in one year to potentially increase the number of intrathecal pump, spinal cord stimulator, and peripheral nerve stimulator replacements in WCMSAs. Using the same 24-year life expectancy per above, the WCMSA will include one placement and three replacements when applying the new calculation.

Questions?

Please do not hesitate to contact the author if you have any questions.

How Verisk can help! Our Second Look service!

Verisk’s Second Look service can help you optimize CMS’s Amended Review process. Since the inception of CMS’s Amended Review back in 2017, our Second Look service has helped our customers achieve significant savings to help lower MSA costs and get claims settled! In 2022, our Second Look service delivered over $7M in savings --- and over $44M since 2017! In addition, keep mind we offer several different MSA cost-mitigation services to help you reduce allocation costs in other areas! In 2022, our MSA cost-mitigation services achieved over $75M in savings!


Sid Wong, J.D.

Sid Wong is the Vice President of Policy at Verisk Casualty. In this capacity Sid monitors and evaluates the changing state of Medicare Secondary Payer compliance to develop impactful solutions to emerging MSP issues and works to ensure that Verisk’s Casualty’s policies, products, and services continue to align with the MSP landscape. He also oversees Verisk Casualty’s policy team, which provides policy and compliance support for all of Verisk Casualty’s clients. During his tenure he has served as Legal Director, Assistant Director of Services, Client Solutions Manager, and MSP Compliance Manager. Sid is a subject matter expert on MSAs, Conditional Payment Recovery, and Section 111 reporting. He collaborates with clients to develop best practices and respond to any compliance or policy questions, whether it’s a case level issue or evaluating a process impacting the larger organization. He regularly presents at industry conferences and provides training for clients.

Prior to joining Verisk, Sid worked for a small general practice firm in New Hampshire where he received his JD from University of New Hampshire Franklin Pierce School of Law. Sid is a member of the MA, NH, and NY bar, the IAIABC, NAMSAP, MARC, and is MSCC certified.


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1 CMS describes this process in Section 16.3 of the Reference Guide as follows:

Where the following criteria are met, CMS will permit a one-time request for re-review in the form of a submission of a new cover letter, all medical documentation related to the settling injury(s)/body part(s) since the previous submission date, the most recent six months of pharmacy records, a consent to release information, and a summary of expected future care.

  • CMS has issued a conditional approval/approved amount at least 12 months prior.
  • The case has not yet settled as of the date of the request for re-review.
  • Projected care has changed so much that the submitter’s new proposed amount could result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.
  • Where a re-review request is reviewed and approved by CMS, the new approved amount will take effect on the date of settlement, regardless of whether the amount increased or decreased.
  • This new submission may be delivered in either paper or portal formats. Please see the WCMSAP User Guide for more information on electronic submission.
    In order to justify that the projected care would result in a 10% or $10,000 change (whichever is greater), the submitter must return CMS’ Recommendation Sheet that was included in CMS’ conditional approval letter and identify the following:

    • Line items that were included in the approved amount, but are for care that has already been provided to the beneficiary. Please identify where references to records indicating that the care has already been provided can be found in the updated proposal.
    • Line items for care that is no longer required. Please identify where references to replacement treatment can be found in the updated proposal.
    • If additional care is required that was not otherwise included in CMS’ conditional approved amount, please add line items.

Notes:

  • In the event that treatment has changed due to a state-specific requirement, a life-care plan showing replacement treatment for denied treatments will be required if medical records do not indicate a change. Requests for changes to treatment plans will not be accepted without supporting medical documentation.
  • The approval of a new generic version of a medication by the Food and Drug Administration does not constitute a reason to request an amended review for supposed changes in projected pricing. CMS will deny the request for re-review if submitters fail to provide the above-referenced justifications with the request for re-review. Submitters will not be permitted to supplement the request for re-review, nor will they be developed.
  • Re-review and amended review requests may be made electronically or by mail.
    See the WCMSAP User Guide at https://www.cob.cms.hhs.gov/WCMSA/assets/wcmsa/userManual/WCMSAUserManual.pdf for details on electronic submission. Professional Administrators who are not the original submitter, see Section 19.4.

2 See e.g., CMS’s WCMSA Reference Guide (Version 3.8, November 10, 2022), Section 9.4.5.

3 See, CMS’s WCMSA Reference Guide (Version 3.9, May 15, 2023), Section 9.4.5.

4 See, CMS’s WCMSA Reference Guide (Version 3.9, May 15, 2023), Section 9.4.5.

 


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