By Annie M. Davidson and Marty Cassavoy
Late on Tuesday October 29th the Centers for Medicare & Medicaid released an update, version 3.0 to its WCMSA Reference Guide (Guide). The new version of the guide outlines all key policies and procedures applying to the workers’ compensation Medicare Set-Aside process, and includes important updates for both claims payers and attorneys. The updated reference guide represents the most substantive changes since January 2019. A link to the updated reference guide can be found here.
While there are a number of changes to the Guide, the two most important include changes to the Amended Review program and changes to the Consent to Release Form language.
Amended Review Update Timeframe
CMS adjusted the Amended Review timeline to provide parties with a 12 to 72 month look-back period which increases the timeframe by two full years. CMS introduced the Amended Review program in the summer of 2017, which allows parties the opportunity to have a second chance to obtain CMS approval of a Medicare Set Aside. At the time, CMS allowed parties to re-submit a brand new Medicare Set-Aside proposal if two core requirements were met: a prior CMS determination was issued between 12 and 48 months prior and the prior MSA determination was $10,000 or 10%, whichever is greater, different from the newly updated MSA amount.
The update extends the window to 12 to 72 months. CMS’ decision to extend the window is a major win for the industry. The Amended Review program has proven beneficial for parties who believed that settlement was not in the cards due to an unsatisfactory determination by CMS. Parties participating in Amended Review have the opportunity to secure CMS approval at a far more reasonable MSA amount, saving tens of thousands of dollars per claim. We applaud CMS for extending the Amended Review program and providing hope for parties who probably thought the settlement ship sailed long ago.
Updated Consent to Release Language
CMS also updated its standard Consent to Release Form language. A Consent to Release Form must be signed by a Medicare beneficiary in order for CMS to review a Medicare Set-Aside proposal. The Consent to Release Form authorizes CMS to disclose information to the submitter of the Medicare Set Aside. The form is limited in the sense that it only applies to the injury settlement being addressed in the MSA.
Effective April 1, 2020, CMS will require that all Consent to Release Forms include additional language indicating that the claimant had the MSA process explained and that the claimant approves of the contents of the proposal. Specifically, the new language is “I have had the Workers’ Compensation Medicare Set-Aside Arrangement and process explained to me, and I approve of the contents of the submission.” The beneficiary must initial this statement in addition to signing the Consent to Release Form.
The path to chaos is often paved with good intentions. While we have no doubt in the purity of CMS’s motives, this new language invites problems particularly in situations where the beneficiary may not be represented by counsel. Moreover, and it may come as a surprise to CMS, it is unusual for claimants to declare specifically that they approve of the contents of a number of types of documents that are far more consequential than an MSA proposal. Dispositive motions, civil complaints, and a variety of other documents are often reviewed with claimants, but rarely if ever, must a claimant declare in writing their approval of the contents of the request.
Other Noteworthy Changes
CMS made a number of updates with regard to the interplay between professional administration and prescription drugs. CMS:
- “Highly recommends professional administration where a claimant is taking controlled substances that CMS determines are ‘frequently abused drugs’” as outlined in CMS Drug Utilization Review Policy.
- Expects that “all WCMSA administration programs should institute Drug Management Programs for claimants at risk for abuse or misuse of ‘frequently abused drugs.’”
- Made a number of technical changes regarding the WCMSA Portal to accommodate the new Professional Administrator role.
The updated reference guide represents the most substantive changes to the WCMSA Reference Guide since January 2019. While the Amended Review timeline changes are welcome, it will be interesting to see how the Consent to Release changes play out. ExamWorks Clinical Solutions will continue to monitor the updates and will provide further information as warranted. For questions, please contact Annie M. Davidson at firstname.lastname@example.org or Marty Cassavoy at email@example.com.
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 Annie.Davidson@examworks-cs.com or at 651-262-9618.
Marty Cassavoy is the Vice President of MSP Compliance at ExamWorks Clinical Solutions. Marty and his team develop solutions to challenges in all areas of Medicare Secondary Payer compliance and across all insurance types. An attorney licensed to practice law in Massachusetts, Marty works from the ExamWorks’ Woburn, Massachusetts office and can be reached at 781-517-8085 or firstname.lastname@example.org.