February 11, 2014, the Centers for Medicare & Medicaid Services (“CMS”) issued a document seeking feedback about Workers’ Compensation Medicare Set-aside Arrangements (“WCMSAs”). Specifically, this document solicits comments on a CMS proposal to expand when it would be willing to re-review a WCMSA proposal. Comments and concerns will be accepted by CMS via email until March 31, 2014.
Section 1862(b)(2)(A)(ii) of the Social Security Act prohibits Medicare from making payment for a beneficiary's medical expenses when payment has been made or can reasonably be expected to be made under a workers’ compensation policy or plan. Therefore, where a beneficiary resolves a workers’ compensation claim where the primary plan or payer has accepted responsibility for medical expenses, a WCMSA may be appropriate. As explained in great detail in its WCMSA Reference Guide, CMS has established a formal process for the review and approval of WCMSAs.
Currently, Medicare does not have any formal appeals process in place for WCMSAs. However, Medicare is willing to re-review a WCMSA under very limited circumstances. To qualify for re-review today, one of two things must have occurred: (1) you believe CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred); or (2) you believe you have additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination.
Opportunity to Comment
CMS is soliciting public comments to its proposed expansion of the WCMSA re-review process. Specifically, CMS is requesting comments on:
I. An automatic re-review upon request for either:
a. A mathematical error identified in the previously approved WCMSA figure; or
b. In the event the original WCMSA submission included case records for another beneficiary.
II. The possibility of CMS granting a re-review request when all of the following criteria are satisfied:
a. Original WCMSA was approved within the last 180 days;
b. The WC case has not settled;
c. No prior re-review request has been submitted for this WCMSA; and
d. The re-review requests a change to the approved amount of the greater of 10% or $10,000 for any of the following reasons;
e. Submitter disagrees with how CMS interpreted the medical records;
i. Medical records dated prior to the submission date were mistakenly omitted;
ii. Items or services priced in the approved WCMSA are no longer needed or there has been a change to the beneficiary’s treatment plan;
iii. A recommended drug should not be used because it may be harmful to the beneficiary;
iv. Dispute of items priced for an unrelated body part; or
v. Dispute of the rated age used to calculate life expectancy.
Garretson Resolution Group (“GRG”) will be submitting comments to CMS; however, we would appreciate receiving your input on the proposed expansion, including any clarifications or comments specific to timeframe, threshold and reasons to grant a re-review request. If you have time to provide comments you can email them to me at email@example.com with the subject line noted as CMS WCMSA Re-Review Expansion Proposal.
You may submit comments or concerns directly to CMS via email at WCMSARereview@cms.hhs.gov.
GRG will be monitoring the progress and will let you know as soon as any final guidance is issued. In the meantime, please let us know if you have any questions or if you would have comments or suggestions. If you have any questions please contact John Cattie at 704-559-4300 x2250 or firstname.lastname@example.org.