Yet another indication that The Centers for Medicare & Medicaid Services (CMS) intends to make Medicare Secondary Payer (MSP) enforcement a priority in 2019: both the WCMSA Reference Guide and NGHP User Guide have been updated with several impactful changes. The updated WCMSA Reference Guide can be found here, and the updated NGHP User Guide can be found here.
WCMSA Reference Guide Updates:
In the Summary of Changes in the beginning of the WCMSA Reference Guide, CMS identified that changes to the WCMSA Reference Guide were only the following:
To eliminate issues around Development Letter and Alert templates auto populating with individual Regional Office (RO) reviewer names and direct phone numbers, these will now display the generic “Workers' Compensation Review Contractor (WCRC)” and the WCRC customer service number “(833) 295-3773” (Appendix 5).
Per CMS' request, certain references to memoranda on cms.gov have been removed.
The CDC Life Table has been updated for 2015 (Section 10.3).
Updates have been provided for spinal cord stimulators and Lyrica (Sections 9.4.5 and 188.8.131.52)
However, Franco Signor conducted a full comparison of this Reference Guide to the last Reference Guide and we have noted several additional impactful changes in the Reference Guide which were not noted in the summary. They are the following:
Section 4.2 Indications That Medicare's Interest are Protected
CMS added a bullet point:
“CMS' voluntary, yet recommended, WCMSA amount review process is the only process that offers both Medicare beneficiaries and Workers' Compensation entities finality, with respect to obligations for medical care required after a settlement, judgment, award, or other payment occurs. When CMS reviews and approves a proposed WCMSA amount, CMS stands behind that amount. Without CMS' approval, Medicare may deny related medical claims, or pursue recovery for related medical claims that Medicare paid up to the full amount of the settlement, judgment, award, or other payment.”
FSCommentary While CMS continues to maintain that its WCMSA review process is voluntary, it continues to reiterate that an MSA that is not approved by CMS provides CMS with the ability to pursue recovery for treatment paid up to the full amount of the settlement, judgment, or award.
Section 8.1 Review Thresholds
CMS added two examples of settlements not meeting CMS review thresholds, but which would still require consideration of Medicare's interests:
Example 1: A recent retiree aged 67 and eligible for Medicare benefits under Parts A, B, and D
files a WC claim against their former employer for the back injury sustained shortly before
retirement that requires future medical care. The claim is offered settlement for a total of
$17,000.00. However, this retiree will require the use of an anti-inflammatory drug for the
balance of their life. The settling parties must consider CMS' future interests even though the
case would not be eligible for review. Failure to do so could leave settling parties subject to
future recoveries for payments related to the injury up to the total value of the settlement
Example 2: A 47-year-old steelworker breaks their ankle in such a manner that leaves the
individual permanently disabled. As a result, the worker should become eligible for Medicare
benefits in the next 30 months based upon eligibility for Social Security Disability benefits. The
steelworker is offered a total settlement of $225,000.00, inclusive of future care. Again, there is a
likely need for no less than pain management for this future beneficiary. The case would be
ineligible for review under the non-CMS-beneficiary standard requiring a case total settlement to be greater than $250,000.00 for review. Not establishing some plan for future care places settling
parties at risk for recovery from care related to the WC injury up to the full value of the
FS Commentary: CMS is stating that even if a settlement does not meet review threshold, if the settlement involves a Medicare beneficiary or a claimant that is reasonably expected to be receiving Medicare within 30 months of the settlement, then failure to include an MSA or some funding/consideration for Medicare's interests would subject the entire settlement to recovery.
Based upon these examples, particularly noteworthy in example 2, a reasonable expectation claimant scenario, CMS notes that parties should establish “some plan for future care.” Essentially, CMS is indicating to workers' compensation payers that an MSA-type projection for future care should be included in all settlements with Medicare beneficiaries and reasonably expected Medicare beneficiaries, regardless of the settlement amount, or the parties stand at risk of CMS seeking recovery for monies paid up to the entire settlement amount.
As a Best Practice it is recommended, particularly in settlements with reasonably expected beneficiaries over $25,000, that workers' compensation payers include a formal MSA for future medical care to avoid the risk of CMS seeking recovery of the entire settlement amount.
Section 184.108.40.206 Pharmacy Guidelines and Conditions
CMS added a new example regarding reasoning for Lyrica being added into the WCMSA approval:
Lyrica (Pregabalin) is cited in MicroMedEx for an off-label medication use related to neuropathic pain from spinal cord injury, and a number of scientific studies indicate that
Pregabalin shows statistically significant positive results for the treatment of radicular pain (a
type of neuropathic pain). Spinal cord neuropathy includes injuries directly to the spinal cord or
its supporting structures causing nerve impingement that results in neuropathic pain. Lyrica is
considered acceptable for pricing as a treatment for WCMSAs that include diagnoses related to
radiculopathy because radiculopathy is a type of neuropathy related to peripheral nerve
impingement caused by injury to the supporting structures of the spinal cord.
[New addition]: “A Future Treatment Plan is required in the absence of a Life-Care Plan.” (refer to PDF page 50)
FS Commentary: As we have previously blogged (view prior blog on this topic here), CMS continues to include treatment in WCMSAs that would not be otherwise covered under Medicare Part D but would seem to be supported by nearly any medical literature or any doctor as medically indicated. In scenarios with off-label drugs, parties should consider CMS' position on its inclusion of off-label drugs strongly when determining whether to submit an MSA to CMS for review.
OTHER LESS NOTABLE CHANGES ARE OUTLINED BELOW:
Section 9.0 WCMSA Submission Process Overview
CMS added a statement:
“These two submission methods represent the only acceptable delivery methods.”
Link updated (refer to PDF page 27): National coverage guidelines may be found at this link, ascending on the CMS website.)
Section 9.4.5 Spinal Cord Stimulators
v2.8 stated: [Old] “Routine revisions will not include the lead implantation.”
v2.9 updated to: [New]: “Routine replacement of the neurostimulator pulse generator includes the lead implantation up to the number of leads related to the associated code. Revision surgeries should only be used where a historical pattern of a need to relocate leads exists.”
“SCS pricing is based on identification of: 1.) Rechargeable vs. Non-rechargeable and 2.) Single vs. Multiple Arrays (leads). If unknown, CMS will default to non-rechargeable single array.”
Table 9-3: Spinal Cord Stimulator Surgery CPT Codes
CMS significantly expanded this list. (refer to PDF page 31-32)
Section 10.5.2 Use of WC Fee Schedule vs. Actual Charges for WCMSA (refer to PDF page 53)
CMS Deleted Virginia from the following statement:
“Note: The following states do not have a fee schedule: Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin. Do not use a fee schedule in a state that does not have a fee schedule.”
Section 16.0 Re-Review
CMS include an update under Missing Documentation:
Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
[Old]: “Submitters will not be permitted to supplement the request for re-review.” (refer to PDF page 63)
[New]: ” Submitters will not be permitted to supplement the request for re-review, nor will they be developed.”
Section 17.3 Use of Account
[Old]: “expenses, Medicare will not pay injury-related claims until these funds are restored to the WCMSA account and then properly used up.”
[New]: “expenses for the WC settled injury or illness, Medicare will deny all WC-injury-related claims until the WCMSA administrator can demonstrate appropriate use equal to the full amount of the WCMSA.”
Section 18.0 CMS' Monitoring
(refer to PDF page 67)
[New addition]: “This is accomplished by placing an electronic marker in CMS' systems used to pay or deny claims. That marker is removed once the beneficiary can demonstrate the appropriate exhaustion of an amount equal to the WCMSA plus any accrued interest from the account. For those with structured settlements, the marker is removed in any period where the beneficiary exhausts their available funds; however, it is replaced once the anniversary fund deposit occurs until the entire value of the WCMSA is demonstrated as entirely exhausted.”
NGHP User Guide Updates:
Chapter III, Policy Guidance was updated to reflect CMS' recently released thresholds: Beginning January 1, 2019, the threshold for liability insurance settlements, judgments, awards, or other payments (“settlements”) will remain at $750. CMS will maintain the $750 threshold for no-fault insurance and workers' compensation settlements, where the no-fault insurer or workers' compensation entity does not otherwise have ongoing responsibly for medicals. (Section 6.4)
Chapter V, Appendices, was updated to note the following:
If the Total Payment Obligation to Claimant (TPOC) is determined after the settlement date, Responsible Reporting Entities (RREs) are required to provide an actual or estimated date for the TPOC funding. To this end, the definitions for the Funding Delayed Beyond TPOC Start Date fields (and related error code descriptions) have been updated (Table A-3, fields 82, 95, 98, 101, and 104).
To resolve discrepancies, the excluded ICD-9 and ICD-10 tables in the appendices have been updated to match the excluded lists that are available through the Section 111 MRA application (Appendix I and Appendix J).
To reduce the number of version and revision history pages, this guide now includes only information from the last four releases.
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