New CMS Re-Review Option for WC MSAs Very Limited

The Centers for Medicare and Medicaid Services (CMS) released a new re-review option in the updated WCMSA User Manual on July 10, 2017.

The new option is very limited. See Section 12.4 and 12.4.3  beginning on page 12-12 and continuing for the following 22 pages ending on page 12-34.https://www.cob.cms.hhs.gov/WCMSA/assets/wcmsa/userManual/WCMSAUserManual.pdf

Limitations of New (Amended) Re-Review Option

A new re-review option is permitted only if it is in approved status at a Regional Office and a re-review is not already in process.

A consent form is required prior to case submission and the Request for a re-review must be submitted with significant additional information entered in pre-determined fields

The request must identify whether it is for review of Medical, Prescription or Both

For the new option the request must provide medical or prescription drug details to support the request and attach supporting documentation.

You may only request an amended review one time per case

You may not request another re-review if your request for an amended review is denied (even if the case is not eligible)

To be eligible for an Amended Review, the case

  • Must have been originally submitted between one and four years from the current date
  • Cannot have a previous request for an Amended Review
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount

The new proposed MSA Amount can be greater than or less than the Approved MSA Amount, as long as the difference is at least 10% or $10,000 (whichever is greater)

UWC Comment:

The effect of this addition is to more specifically limit the cases that CMS chooses to re-review and reduce the administrative cost to CMS of the re-review as compared to the informal process of elective re-review that had developed.  It limits the cases that parties to a WC MSA may seek re-review, increases the administrative cost of seeking re-reviews, and provides no right of appeal to the parties to the MSA settlement.

There will be some cases that can fit into the new limited provision, but the new option begs the question of whether informal re-reviews will continue nonetheless. In releasing this option CMS preserves its discretion in making determinations and approving re-reviews.

Legislation that clearly provides a right of the parties to a WC settlement to appeal a MSA amount determination by CMS is needed. We continue to work with Reps. Reichert (R-WA), Thompson (D-CA) and Senators Portman (R-OH) and Nelson (D-FL) on updated legislation from HR 2649 and S 1514 last year that would provide for a statutory right of appeal. We expect introduction later this year.