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CMS Issues Alert & WCMSA User Guide Update; Positive Changes Expedite Allocation Practice

Knowledge

CMS Issues Alert & WCMSA User Guide Update; Positive Changes Expedite Allocation Practice

KEY TAKEAWAYS:

  • Beginning April 7, CMS will eliminate its one-year waiting period for WCMSA Amended Review requests

  • CMS will no longer accept, nor review, WCMSAs with zero allocations, starting July 17

  • Both changes potentially reduce delays, save costs, and facilitate Workers’ Compensation settlements

Zero Wait Time Required for Amended Review

Beginning April 7, the Centers for Medicare & Medicaid Services (CMS) will eliminate its one-year waiting period for Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Amended Review requests.

Instead, CMS will allow Amended Review requests at any time following WCMSA approval. This is good news for all. Removing the one-year wait period reduces delays and costs when there is new evidence a submission determination should be revised. Note the Amended Review criteria remain unchanged in Section 16.3 of the WCMSA Reference Guide.

Zero Allocations

CMS will no longer accept, nor review, WCMSAs with zero allocations, starting July 17. In an update to Section 4.2 of the WCMSA Reference Guide, CMS states parties should use Section 4.2 to assess whether a zero allocation is appropriate and maintain documentation in support of any zero allocation.

The new text documents the conditions necessary to demonstrate support for a zero allocation:

  • The treating physician documents, to a reasonable degree of medical certainty, treatment and medication is no longer related to the WC injury or illness; or
  • The insurer or employer denied responsibility for benefits, has made no payments for treatment nor indemnity, but for investigational purposes, medical and indemnity are not actively being paid, and the settlement does not allocate certain amounts for specific future or past medical or pharmacy services; or
  • The trier of fact has determined, after a ruling on the merits, that the insurer or employer does not owe additional medical or indemnity benefits, medical and indemnity are not actively being paid, and the settlement does not allocate certain amounts for specific future or past medical or pharmacy services; or
  • The claim was denied within the state statutory framework during the investigation period, medical and indemnity are not actively being paid, and the settlement does not allocate certain amounts for specific future or past medical or pharmacy services.

Expect CMS to maintain its argument payment is evidence of claim acceptance. However, CMS has now proactively documented the factual criteria it accepts as demonstrating Medicare’s interests are protected. Zero allocations still have limited applicability, with a premium on situations where limited or no payments have been made. However, in disputed cases, parties now have a new path to settle with confidence, minimize submission delays, and avoid unfavorable outcomes associated with zero allocation submissions.

Practice Tips

  • If an approved MSA can be reduced, do not wait to resubmit; gather your evidence and do so right away.
  • Controverted claims can now be settled confidently with a $0 MSA, but only where the claim is denied with no payments made.

Contact Goldberg Segalla for more information and for all your Medicare compliance concerns.