While there may be no second chances in life, there is now a second chance for CMS review and approval of an MSA. On July 10, 2017, the Centers for Medicare and Medicaid Services (CMS) quietly rolled out a new policy allowing for a re-review of a previously approved Medicare Set-Aside which is between one and four years post-submission and for which there is a certain dollar amount change in projected future medical care since that time. The policy, which CMS calls an Amended Review, requires the previously approved MSA meet the following criteria:
- Must have been originally submitted between one and four years from the 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 (The amount can be greater or less than the previously approved MSA amount).
CMS also notes that while you may change from brand-name to generic drug types, this change cannot be the sole reason for the Amended Review request. You must include additional changes such as changes in dosage and/or frequency, additional drugs or drugs no longer taken to qualify for the Amended Review.
A copy of the policy can be found in Section 12.4.3 of the revised Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide found here.
Practical Implications of Amended Review Policy
Prior to this new policy, CMS, in almost all cases, would not review a new MSA proposal based upon post-submission medical records and pharmacy history once an MSA was approved. Consequently, if parties were unable to settle a case because of a high CMS MSA approval, but came back to the settlement table a couple years later when the claimant’s medical care had subsided, they were unable to obtain a revised MSA approval from CMS which would accurately reflect the claimant’s current and future course of medical care. Under this new policy, these cases which are within 1-4 years post the original MSA submission and meet the 10% or $10,000 (whichever is greater) criteria will have a second chance at CMS review and approval of an MSA.
Unanswered Questions Regarding Policy
As with many a new policy CMS left some unanswered questions.
It is unclear why CMS limited the Amended Review policy to submissions made within four years. We assume this is to limit the number of MSAs submitted for an Amended Review, but there remain cases older than four years which would benefit from this policy.
While we do not like to look a gift horse in the mouth, it seems unreasonable of CMS to preclude from its Amended Review policy requests which are based solely upon a brand name medication going generic or a claimant otherwise switching to a generic medication. This type of change often results in a significant reduction to the MSA.
The 10% or $10,000 change (whichever is greater) policy effectively means that there must be a $10,000 change to a previously approved MSA of $100,000 or less before it meets the criteria for an Amended Review. However, the example CMS provides in the User Guide inaccurately reflects a change on an $80,000 MSA of $8,000 as meeting the Amended Review criteria. We believe either the policy or the example is in error. We await CMS correcting this example or clarifying its policy.
Does My Case Fit the CMS Amended Review Criteria?
The Amended Review criteria opens the door to the settlement of some older cases where prior CMS approved MSA amounts no longer accurately reflect the claimant’s current and future course of medical care. Please feel free to reach out to Tower MSA Partners for an evaluation as to whether your previous CMS approved MSA may meet the Amended Review criteria. Tower MSA may be contacted at email@example.com or (888) 331-4941.
Additional Changes in Updated WCMSAP User Guide
Besides the introduction of the Amended Review policy, CMS also made the following notable changes to the WCMSAP:
- Claimants who are Medicare beneficiaries now have access to the WCMSAP through MyMedicare.gov. Accordingly, claimants are able to view MSA submissions and supporting documentation although will not be able to modify the documentation or otherwise take any actions on the submission which remain solely with the submitter of the MSA, i.e. Tower MSA.
- For MSA submissions that have been closed for more than 12 months (Usually as a result of a non-response to a Development Letter), an entirely new MSA submission must be made with all documents generally required of a new MSA submission, i.e. two years of medical records. The new MSA submission will be assigned a new Case Control Number.
Author Dan Anders, Chief Compliance Officer, Tower MSA Partners. Dan oversees the Medicare Secondary Payer (MSP) compliance program. In this position, he is responsible for ensuring the integrity and quality of the MSA program and other MSP compliance services and products. Based upon his more than a decade of experience in working with employers, insurers, TPAs, attorneys and claimants, Dan provides education and consultation to Tower MSA clients on all aspects of MSP compliance. Contact: (847) 946-2880 or firstname.lastname@example.org