On February 11, 2014, the Centers for Medicare and Medicaid Services (CMS) proposed a rule expanding the re-review of Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs). The notice concerning the proposed rule can be viewed here: http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Re-review-Expansion.pdf. CMS currently limits re-reviews to situations in which documentation was omitted from the original proposal or in the event of a mathematical error by Medicare’s review contractor.
The new proposal outlines a “broader array” of instances in which CMS will consider a re-review. The CMS proposal contemplates re-reviews be completed by the Workers’ Compensation Review Contractor (WCRC) within 30 business days of the re-review request. CMS also proposes re-reviews will be performed by individuals not involved in the original determination.
CMS proposes the following expanded process:
I. Re-review requests can be submitted at any time to the WCRC for the following reasons:
• A mathematical error was identified in the approved set-aside amount.
• Original submission included case records for another beneficiary.
II. Re-review can be submitted to the WCRC when the original WCMSA was approved within the last 180 days; the case has not settled; no prior re-review request has been submitted for this WCMSA; and, the re-review requests a change to the approved amount of 10% or $10,000 (whichever is more) for any of the following reasons:
• Submitter disagrees with how the medical records were interpreted.
• Medical records dated prior to the submission date were mistakenly omitted.
• Items or services priced in the approved set-aside amount are no longer needed or there is a change in the beneficiary’s treatment plan.
• A recommended drug should not be used as it may be harmful to the beneficiary.
• Dispute of items priced for an unrelated body part.
• Dispute of rated age used to calculate life expectancy.
A re-review may be elevated by the WCRC to a CMS Regional Office. The proposal identifies “failure to adhere to court findings; CMS policy disputes; carrier maintains Ongoing Responsibility for Medicals for treatment that has been included in approved WCMSA, etc.,” as possible bases for elevation.
The second proposed category of authorized re-review circumstances creates a potential new appeal-like process for Workers’ Compensation Medicare Set-Asides. CMS is accepting comments on their proposal through March 31, 2014. The 180 day review window significantly limits the cases which will benefit following a change in circumstance. The proposed 10% or $10,000 threshold will also eliminate a large volume of cases from the re-review process entirely. Likewise, CMS’ proposed 30 day turnaround on re-reviews is a lofty goal. We anticipate the comment process will focus on several of these issues. In the meantime, it remains to be seen whether an expanded re-review process will significantly impact current practice. The proposal suggests CMS recognizes changes are needed. Accommodating the varied state workers’ compensation programs and acknowledging other limitations on compensable medical expenses is one step toward continued voluntary participation in CMS’ WCMSA program.
Jennifer Burke Santoro, is a Medicare Set-Aside Certified Consultant practicing in the firm's Chicago office. In addition to her Medicare work, Jennifer defends employers in Workers' Compensation matters and maintains an active general liability defense practice.
Whitney Siehl is an associate in the firm's Chicago office. She works on employment, medical malpractice, and civil defense litigation matters.