On January 10, 2022 CMS Released an updated WCMSA Reference guide adding a new section, Section 4.3, entitled “The Use of Non-CMS-Approved Products to Address Future Medical Care.” Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.5, January 10, 2022).
Section 4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care
“A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest.
Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.
As a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to prove complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.”
On February 16, 2022, the MSPN held a Webinar entitled “CMS Clarification on Non-Submit: What You Should Know” available now on-demand including panelists, Annie Davidson, Esq., MSCC, Senior MSP Compliance Counsel and Policy Strategist, ExamWorks, John P. Kane, AIC, MSCC, CMSP-F, VP of Strategy, Ametros and Deborah Watkins, Founder & Chief Disruption Officer, Care Bridge International. The following day, CMS held a WCMSA Webinar to discuss topics including clarification of their non-submit position, however, a copy of the transcript remains pending.
On March 15, CMS released an updated WCMSA Reference Guide Version 3.6 to clarify its position regarding Non-Submit MSAs. Clarification has now been provided in Section 4.3, as shown below. The highlighted sentences are additions to the original version released in January.
Revised Section 4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care
A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest.
Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests WCMSA Reference Guide 7 are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.
As a matter of policy and practice, CMS may at its sole discretion deny payment for medical services related to the WC injuries or illness, requiring attestation of appropriate exhaustion equal to the total settlement as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments, before CMS will resume primary payment obligation for settled injuries or illnesses, unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.
Notes: This official policy shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare does not make payment during the spend-down period. CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.
In summary, CMS maintains that it views non-submission of a MSA as a potential attempt to shift the burden to Medicare but has softened its position stating it may deny benefits as opposed to will deny benefits unless it is shown at the time of the exhaustion of the MSA funds that the initial funding of the MSA and exhaustion of the MSA was appropriate. CMS states that this change is not retroactive, the official policy applies to all notifications of non-CMS-approved products received on or after January 11, 2022.
Using data intelligence, at Care Bridge International, our MSAPro and Analytic-Powered MSA deliver detailed future analysis that strictly adheres to CMS guidelines for MSAs. Our Analytic-Powered MSA is produced in minutes, specifically for an individual claim, is a perfect alternative for MSAs which do not meet the CMS threshold for review and approval, or low dollar, nuisance value claims. Our actuary reviewed and endorsed data, methods, processes, and results have been tested and proven against thousands of claims offering the most advanced approach to forecasting care. Comparing our forecasts with post-settlement medical records, it is significantly more accurate. Analytic-Powered MSAs are approved each year with the submitted attestation forms reviewed and approved by CMS.
Our MSAPro, technology enhanced for our expert clinicians, also includes our ClaimMAP supplying a detailed analysis of medical management opportunities to improve claim and Medicare compliance outcomes.
As claim volumes decreased by 30% during the pandemic and more primary payers voluntarily chose not to submit MSAs to CMS for review and approval, CMS experienced a dramatic decrease in submitted MSAs to review. CMS has a financial obligation of $60 million to the Workers Compensation Review Center, therefore Non-Submit MSAs pose a unique challenge for CMS to find and track in the common working file as well as achieve its ROI.
In conclusion, CMS acknowledges Non-Submit MSAs, but the claimant/administrator must prove to CMS’ satisfaction that the amount set aside for future medicals, pharmacy and DME was totally exhausted properly. Otherwise, they will treat it as an attempt to shift the financial burden to Medicare and future claims for payment by Medicare may be denied. This is the same standard for CMS approved MSAs, but CMS will scrutinize the non-Submits carefully if there is a funding exhaustion.
It is our recommendation that parties continue to be vigilant with Medicare Secondary Payer obligations, being mindful that options may be necessary not only to protect Medicare, but to ensure a successful settlement, therefore the use of our MSAPro or Analytic-Powered MSA are paired with a structured annuity and/ or a post settlement support service/ custodian to ensure a compliant settlement and afford peace of mind for Beneficiaries and Primary payers.
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