Finally, a Re-Review Process for Work Comp Medicare Set Asides, But Still No Formal Appeals Rights for Claimants and Employer/Carriers

Posted by Rafael Gonzalez on Jul 18, 2017 3:31:11 PM

The Centers for Medicare & Medicaid Services (CMS) has put together a mechanism to receive and evaluate future medical and future prescription drug costs for inclusion in Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs). The Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) is a web-based application that allows attorneys, beneficiaries, claimants, insurance carriers, representative payees, and WCMSA vendors to create a work-in-progress case, submit WCMSA cases, perform case lookups, append documentation to a case, receive alerts relating to case activity, and now submit a re-review request.

As I blogged about after CMS’ December 21, 2016 announcement that in calendar year 2017, it expected to update its re-review process, I asked if 2017 would be the year CMS finally begins a WCMSA appeals process? On July 10, 2017, CMS published Version 5.1 of the WCMSAP User Guide, expanding the case re-review process to accommodate situations where projected care for a case has changed so much that the new proposed settlement amount differs from the Medicare approved amount by 10% or $10,000 (whichever is greater). In other words, when an individual disagrees with the Regional Office (RO) decision on a case, or if projected care for a case has changed so much that the new proposed settlement amount differs from CMS’ approved amount by 10% or $10,000 (whichever is greater), the individual can submit a re-review request.

Eligibility and Options for Re-Review

A WCMSAP case is eligible for re-review if “it is in approved status at a Regional Office and a re- review is not already in process.” If so, parties will have three options when requesting re-review:

“Option 1: The individual requesting re-review believes CMS’ determination contains obvious mistakes (e.g., a mathematical error or failure to recognize Medical records already submitted showing a surgery, priced by CMS, that has already occurred).”

“Option 2: The individual requesting re-review believes he/she has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal which warrants a change in CMS’ determination.”

Option 3: “Amended Review: The individual requesting re-review believes projected care has changed so much that the new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.”

Amended Review Eligibility

“The individual requesting re-review may only request an Amended Review one time per case. He/she may not request another re-review if the request for an Amended Review is denied (even if the case is not eligible).”

To be eligible for an Amended Review, the case:

  • “Must have been originally submitted between 1 and 4 years from current date
  • Cannot have a previous request for an Amended Review”
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.”

To complete an Amended Review in the WCMSAP, the individual requesting it must:

  • “Request an amended re-review
  • Enter medical and/or drug details
  • Attach documentation
  • Verify and confirm the request”

Types of Re-Reviews

There are three types of re-review requests: Medical, RX or Both (Medical and RX).

“If either Medical or Both re-review is selected, the individual requesting re-review must provide medical reasons showing the medical care has changed enough to warrant an amended review.”

“If RX or Both re-review is selected, the individual requesting re-review may:

  • Remove drugs that are no longer required
  • Change information (such as dosage requirements) for drugs already included
  • Add additional drugs”

“As part of the re-review request, the individual requesting the re-review may change from brand-name to generic drugs and drug types. However, this change cannot be the sole reason for your re-review request. You must include additional changes (i.e., changes in dosage and/or frequency, additional drugs, or drugs no longer taken) to qualify for a re-review request.”

Canceling the Request for Re-Review

“At any time during the re-review process, the individual requesting re-review may cancel his/her request and discard all of the data previously submitted for re-review.”

Re-Review Determination

“When the re-review process is complete, an email Alert (Approval Letter) will be sent to the email address provided during account setup. The Alert (Approval letter) will include the completed Re-Review Request attachment with the RO determination.”

Conclusion

From the very beginning of the WCMSA process, one of the consistent requests by both claimants and employer/carriers has been the inclusion of a review process that would allow both sides the opportunity to challenge Medicare’s decision on a set aside allocation. On February 11, 2014, CMS announced its proposed expansion of the WCMSA Re-Review process. Although it has taken more than 3 years since its announcement, and more than 16 years since we originally requested it, it is finally here.

Although this is a great first step, this is still an incomplete process as there is no mention of who will be handling such requests or how long such reviews are expected to take. And, there is still no formal appeals process for either the claimant or the employer/carrier to request reconsideration of the RO determination or request a hearing before an administrative law judge, let alone request review by the appeals council, or seek legal remedy in federal court.

16 years after the WCMSA approval process started, claimants and employer/carriers are still waiting for an appeals process that would allow them the opportunity to examine a CMS’ counter-higher, present evidence, including medical records, depositions, and live testimony from medical professionals that can explain the reasonable and necessity of medical services included in the WCMSA and MSA professionals hired to create such allocations. 16 years later, and still no right to a hearing, or a neutral decision maker that can provide the litigants with CMS’ final decision so that they can then exercise their administrative and judicial appellate rights like all others negatively affected by governmental action.

Although we are moving in the right direction, it is still yet another year without formal appeal rights in Work Comp Medicare Set Asides.

About Flagship Services Group

Flagship Services Group is the premier Medicare compliance services provider to the property & casualty insurance industry. Our focus and expertise has been the Medicare compliance needs of P&C self-insureds, insurance companies, and third party administrators. We specialize in P&C mandatory reporting, conditional payment resolution, and set aside allocations. Whether auto, liability, no-fault, or work comp claims, we have assembled the expertise, experience and resources to deliver unparalleled MSP compliance and cost savings results to the P&C industry. To speak with us about any of our P&C MSP compliance products and services, contact us at 888.444.4125 or info@flagshipsgi.com.

About Rafael Gonzalez

Rafael Gonzalez, Esq. is President of Flagship Services Group, the only national Medicare Secondary Payer services provider focusing on and offering comprehensive mandatory reporting, conditional payments, and set aside allocation compliance services to the property and casualty insurance industry. He speaks and writes on mandatory insurer reporting, conditional payment resolution, set aside allocations, CMS approval, and MSA and SNT professional administration, as well as the interplay and effect of these processes and systems and the Affordable Care Act throughout the country. Rafael blogs on these topics at Medicare Compliance for P&C Insurers at www.flagshipservicesgroup.com/blog. He is very active on LinkedIn, Twitter, Instagram, and Facebook. He can be reached at rgonzalez@flagshipsgi.com or 813.967.7598.

Topics: CMS, Medicare Law