The Centers for Medicare and Medicaid Services (CMS) announced on February 11th that it is seeking comments on the manner in which CMS plans to expand the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) re-review process. See : http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Re-review-Expansion.pdf. Currently, CMS has a limited re-review process for WCMSA amounts that can be used in situations where CMS is notified that the submitter omitted documentation from the original proposal or when a mathematical error was made by Medicare’s review contractor. Below is a summary of the proposed expanded re-review process.
Under the planned expanded process, re-reviews will be available for a broader array of categories and reasons. All requests for re-review will be sent to the Workers’ Compensation Review Contractor (WCRC) for resolution within 30 business days. The WCRC will direct the request to a group of experts best skilled to review the identified issue. The experts that perform the re-review will not be the same specialists involved in the original determination.
I. Re-review requests can be submitted at any time to the WCRC for the following reasons:
- A mathematical error was identified in the approved set-aside amount.
- Original submission included case records for another beneficiary.
II. Re-review requests can be submitted to the WCRC when 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; and, the re-review requests a change to the approved amount of 10% or $10,000 (whichever is more) for any of the following reasons:
- 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 certain situations, a re-review may be elevated by the WCRC to a CMS Regional Office. This level of review will occur in situations such as, failure to adhere to court findings; CMS policy disputes; carrier maintains Ongoing Responsibility for Medicals for treatment that has been included in approved WCMSA, etc.
Click here for comments filed on March 28, 2014 by UWC. Our primary points include:
The circumstances under which the parties to a workers’ compensation settlement may request a re-review of a WCMSA should not be limited as proposed.
- The time frame within which CMS is to re-review requests should be clear in defining the number of business days in which the reviews are to be completed and a re-review determined.
- The time for re-review after initial review should not be limited to 180 days.
- Re-reviews should not be flatly prohibited because a case has not yet been finally settled in total.
- There should be no limit on the submission of re-reviews based on whether there was a prior re-review submitted.
- There should be no threshold below which a re-review may not be submitted.
- The reasons for which a re-review may be sought should not be limited.
- Re-reviews should be conducted by an expert independent authority.
- Appeals of re-reviews should be available in all cases without discrimination by an independent authority.
We recognize that it may be difficult to administer a complicated review process for all potential submissions with a limited contract staff and limited dedicated resources. However, a process that has such a significant impact on injured workers, employers and workers’ compensation plans should be designed to assure timely reviews and appeals to assure that the appropriate WCMSA is determined, the workers’ compensation law and Medicare Secondary Payer statutes are properly followed and there is evenhanded administration under the law for all parties to workers’ compensation settlements.