By Annie M. Davidson
Question: We have a case that couldn’t be settled due to a counter-higher in 2014. The claimant’s treatment has decreased dramatically. What options are available for us?
Answer: For those unfamiliar, a “counter-higher” refers to a specific type of determination issued by Medicare with respect to a submitted Workers’ Compensation Medicare Set-Aside Allocation (WCMSA). The question posed presumes the parties are settling for an amount that exceeds one of Medicare’s workload review thresholds: $25,000 for a case involving a Medicare beneficiary or $250,000 for a case involving a claimant with a “reasonable expectation of Medicare enrollment within 30 months of the date of settlement.”
Eligible Submission Responses
When the parties submit an eligible WCMSA to Medicare for review and approval one of four things happen:
- Medicare approves the amount proposed,
- Medicare counters with a higher amount (a “counter-higher”),
- Medicare counters with a lower amount (a “counter-lower”), or
- Medicare issues a “development” letter seeks additional information in order to make a determination.
In this example the “counter-higher” from Medicare was presumably too high and thwarted the parties’ attempt at settlement. The carrier or self-insured simply decided the best bet would be to leave medical benefits open and pay for care as it is incurred instead of (over)funding a WCMSA allocation. Now the parties are back at the bargaining table since several years have gone by and the claimant’s treatment has tapered. So what to do?
Medicare Contractor Review
As we have discussed before, Medicare’s review contractor examines the facts of the case and the care, items, and services the claimant has received in the most recent two years to determine what amount of money the claimant should set-aside for future care related to the claimed injury. The WCMSA Reference Guide helps all parties determine what to include, when to include it, and how to price it, including Part D Medicare plan prescription drugs. We also know that Medicare has an Amended Review process that allows for re-review by Medicare if the prior determination occurred between 12 and 72 months (one to six years) prior to the updated submission.
In the question above, the parties have already hit the 72-month mark or it is quickly approaching. If the parties have already hit the mark or the case does not meet the other criteria, more on that below, then the case is not eligible for participation in Medicare’s voluntary Amended Review process. The parties can and should certainly still obtain a revised WCMSA and fund it accordingly to reflect the updated projection afforded by using the most recent 2 years’ medical and pharmacy records. The Medicare Secondary Payer (MSP) Statute requires the parties to consider Medicare’s interests and to do so reasonably and in good faith. An updated WCMSA using the most recent medical and pharmacy records achieves that over a Medicare approved WCMSA dated from six or more years ago.
The 72-Month Mark and Amended Review Program
If the 72-month mark is approaching, then we recommend the parties act quickly to obtain a revised WCMSA. Take advantage of Medicare’s Amended Review program if the case meets the following criteria in addition to the normal submission criteria (updated cover letter, allocation report and medical and pharmacy records dated within six months of submission date, etc.):
- The case has not already been submitted previously for Amended Review – Medicare permits a one-time request for re-review only;
- Medicare issued a conditional approval/approved amount at least 12 months but no more than 72 months prior;
- The case has not yet settled as of the date of the request for re-review; or
- Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change, whichever is greater, in Medicare’s previously approved amount.
Amended Review is particularly useful in cases where a prior adverse WCMSA determination is holding up the settlement. It is also useful where settlement has not occurred yet but Medicare’s original WCMSA amount would be quite a bit different due to the subsequent changes in treatment patterns.
We do offer one important warning about Amended Review - Medicare is serious about the “one-time request” criteria. If information is missing or inaccurate, Medicare will reject the Amended Review request out of hand. N “Development” letters are not an option in the Amended Review realm, so a word to the wise: get your data organized before you attempt Amended Review.
As your trusted partner, ExamWorks Clinical Solutions follows Medicare’s Amended Review process. If you have a case that has not settled after CMS approval of an MSA, please contact us. We can discuss Amended Review for the case and assist in repositioning that case for settlement.
Annie M. Davidson is MSP Compliance Counsel for ExamWorks Clinical Solutions. In her role, Annie provides legal analysis to ensure the integrity and quality of ExamWorks' Medicare Secondary Payer (MSP) compliance services and related products. Prior to joining ExamWorks, Annie practiced as an insurance defense attorney in her native Minnesota where she litigated workers’ compensation and liability insurance cases, particularly those involving MSP issues. She is admitted to practice law in the State of Minnesota and the United States District Court for Minnesota, and is a graduate of William Mitchell College of Law. Annie can be reached at firstname.lastname@example.org or at 651-262-9618.