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CMS Statement Tips a Tepid Toe on Opioids in Medicare Set Asides

Tuesday, December 19, 2017

CMS responds with a short statement on opioids, but makes no commitment to review process or policy changes, leaving submissions to a trial and error process. Last month we reported on a study from the California Workers’ Compensation Institute (CWCI) highlighting the link between the Centers’ for Medicare & Medicaid Services (CMS) approval process and life-long opioids.  The study, which followed approximately 8,000 CMS-approved Medicare Set Asides (MSAs) involving California workers’ compensation claimants, made the case that CMS policy in this area was antiquated and in need of a re-boot. 

CMS’ recent statement published on the “What’s New” Workers’ Compensation Medicare Set Aside web page, reads:

"CMS understands the concerns regarding the opioid crisis occurring in the United States. We are committed to ensuring the determination of Workers’ Compensation Medicare Set Aside Arrangement (WCMSA) amounts are an adequate projection of claimant’s needs for future medical services and prescription drugs. CMS continually evaluates all policies and procedures related to WCMSA amounts. Any changes that Medicare pursues related to this issue will be reflected in our WCMSA amount review process." 

The CWCI study suggests that CMS’ MSA review methodology places some applicants at an increased risk of harm by signing off on long-term opioid treatment, in contravention of existing opioid standards of care.  Medicare’s statement makes no promises of future policy changes, nor does it address the contents of the study.  Rather, it explains that it is committed to ensuring that the amounts allocated are an “adequate projection” of future medical needs, and that any changes will be reflected in the review process itself, rather than any changes in existing Medicare policy.

CMS’ statement does not tell us anything new.  We would hope that any changes in the review of opioids would be outlined in the WCMSA Reference Guide, rather than through the “WCMSA amount review process.” By suggesting that any changes will be made through the review process, rather than through the reference guide, CMS may be missing a major opportunity.  At the end of the day, settling parties will be reluctant to try a “fresh” approach to opioids from the current program if they have to rely upon trial and error to identify approaches that will work with CMS.  Simply put, the risk of a large “counter-higher” may outweigh the reward.

We look forward to any changes that CMS may make. CMS has an opportunity to be part of the solution.  The opioid epidemic has taken tens of thousands of lives.  It’s time for CMS to make policy changes in this area that ensure that beneficiaries receive appropriate post-settlement care.  As we outlined in November, there are three components that every program should employ to limit the impact of prescription drugs in MSAs.

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