Not every workers’ compensation claim gets settled on the first try — even when there has been a Medicare Set-Aside approved by the Centers for Medicare and Medicaid Services. Thankfully, there is a policy that allows for a ‘re-do’ of many such cases, allowing for settlement years later.
Called the Amended Review Process, it enables stakeholders to seek a new CMS-approved MSA. When medical treatment requirements have changed over the years, the process can save potentially many thousands of dollars, while still ensuring sufficient money for the injured worker’s future medical care.
CMS adopted the process several years ago to facilitate settlements where a previous effort had failed. In the past, the agency would rarely review a new MSA proposal that was based on post-submission medical records and pharmacy history, once an MSA had already been approved. An injured worker whose medical care had been reduced years later, would not be able to get approval for a revised MSA.
Of course, not every previously-approved MSA can be submitted for a re-review. CMS has several caveats:
- CMS has issued a conditional approval/approved amount at least 12 but no more than 72 months prior,
- The case has not yet settled as of the date of the request for re-review.
- Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.
With the right combination of accurate information and expertise in MSA-related issues, more cases are likely to settle the second time around.
Case Study: (Provided by Tower MSA Partners): $101,312 Savings Through Amended Review Process
CMS had approved an MSA for an injured worker in 2015 in the amount of $147,483, but the parties were unable to settle. Four years later, the injured worker was again interested in settling the claim. However, the MSA approved in 2015 was no longer an accurate representation of the worker’s future medical needs.
In the past, this claim would likely not have settled, causing distress for the payer and injured worker alike. But the use of the Amended Review Process coupled with medical expertise and detection led to a win-win for all.
A look at medical records produced evidence that the injured worker was no longer using a supplemental oxygen delivery system. Additionally, the worker had replaced brand-name Crestor with a less expensive, but equally effective generic drug prescribed for high cholesterol.
CMS stipulates that a change from brand-name to generic drugs cannot be the only reason for the Amended Review request. However, it can be included when additional changes are involved, such as the unnecessary inclusion of the oxygen delivery system.
Having this information at hand was the first step to gaining a re-review from CMS. However, equally important was the medical legwork required to secure proof of the changes in medical treatment.
Tower’s Physician Follow-up service was used to get a signed statement from the treating physician confirming the oxygen system had been discontinued and that the patient was using a generic version of Crestor.
Armed with the required documentation, Tower submitted a revised MSA to CMS in the amount of $46,171.
CMS’ approval of the revised MSA four years later resulted in savings of $101,312 and met the injured worker’s future medical needs. The case is a classic example of how a high-dollar MSA that leads to a breakdown in the settlement process can be turned around several years later when there are changes in the medical regimen.
There are multiple reasons a workers’ compensation claim doesn’t settle, even if the parties seem motivated. The Amended Review process, used in conjunction with proactive medical and MSA expertise, can be a valuable tool to move these claims to settlement.
A common corollary question to the Amended Review process is whether you can settle based upon an MSA which was approved years ago. The answer is yes, even if the allocation no longer accurately accounts for future medical, CMS will allow parties to use the old approved MSA in settlement.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center , which offers the Certified Master of Workers’ Compensation national designation.
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