Highlights of CMS’ WCMSA Webinar
CMS recently hosted a webinar covering a variety of WCMSA topics. Most highly anticipated, however, was the discussion of CMS’ policy regarding Non-submit MSAs. As you may recall, earlier this year CMS published an update to it’s WCMSA Reference Guide that addressed its position regarding the use of Non-submit MSAs. This update caused substantial buzz in the industry as it was the first time that CMS formally addressed Non-submit MSAs. The update confirms CMS’s position on Non-submit MSAs: CMS will deny payment for treatment of work-related conditions up to the settlement amount less procurement costs when the MSA is not approved by CMS and is prematurely exhausted. The full text of update can be found here.
During the webinar, John Jenkins, CMS’ Heath Insurance Specialist, Division of MSP Program Operations, explained that the update to the WCMSA Reference Guide was intended to provide a formal answer to the industry’s long-standing question about CMS’ policy on Non-submit MSAs. He clarified that the stated policy is no different than it has always been. Nor have there been any changes to the statutes or regulations. The CMS approval process remains a voluntary process.
Mr. Jenkins further explained that if CMS approval is not obtained and they are later notified of settlement with a Non-submit MSA, CMS places a marker in its system to indicate that Medicare should deny payment for treatment of the settled injuries/conditions until the settlement is exhausted. This appears to be the way all Non-submit MSAs that CMS becomes of aware of will be handled, regardless of whether CMS review was available or if the Non-submit MSA might be reasonable and defensible.
Notably, the applicable statute and regulations do not provide that CMS may deny payment up to the settlement amount for all cases in which CMS approval was not obtained. 42 CFR 411.46 states that Medicare may deny payment for treatment “[i]f a settlement appears to represent an attempt to shift to Medicare the responsibility for payment of medical expenses for the treatment of a work-related condition.” In the webinar, Mr. Jenkins agreed that Non-submit MSAs in and of themselves do not necessarily reflect burden shifting. The burden shift would occur when/if Medicare is asked to make payment for work-related medical treatment post-settlement. At that point, documentation would need to be provided to CMS to support the Non-submit MSA so that CMS could determine if it was sufficient or if the settlement must be exhausted. Mr. Jenkins did not provide additional details, but this could be an indication that a post-settlement review process might be established in the future.
Settlement Documents: Mr. Jenkins reminded us that the WCMSA process is not currently connected to Section 111 Reporting. So, if CMS approval was obtained, it is important that a copy of the final settlement documents be sent to CMS once settlement is complete. CMS will then place a marker in its system to deny future treatment as there is another fund- the MSA- available to pay.
Electronic Attestation: Annual attestations for approved MSAs can now be submitted electronically by beneficiaries, self-administrators, and professional administrators.
Georgia’s 400-week cap for non-catastrophic cases: CMS will only apply the statutory cap if a court/board/commission has issued an order confirming that the case is non-catastrophic.
California IMR Final Determinations: CMS will exclude treatment based on an IMR Final Determination if alternate treatment has been provided.
Data Sharing with Part D Plans: CMS is sharing the information that Part D Plans have requested.
Prescription Drug Pricing: CMS utilizes the Average Wholesale Price to calculate the cost of prescription medications in MSAs. CMS is more than happy to hear input from the industry on other medication pricing options.
Conditions Preventing Surgery: When surgery is recommended but the claimant does not receive medical clearance, CMS assumes that the claimant’s health can improve, and the claimant will be able to have surgery. The same holds true for claimants who do not currently wish to undergo a recommended surgery as they may change their mind in the future. A statement from the beneficiary attesting that a treatment will not be obtained will not be accepted.
Amended Review: The Amended Review process is only available for cases meeting certain criteria, including that the most recent determination was issued within the past 6 years. CMS feels that 6 years is a sufficient look-back period and does not plan to extend that timeframe. When settling claims with an MSA approved by CMS more than 6 years ago, the original CMS-approved MSA should be funded.
CMS Policy Memorandums: CMS’ Memos are no longer relevant. The WCMSA Reference Guide contains all currently applicable and relevant information.
If you are interested in discussing the update to the WCMSA Reference Guide further or have questions regarding the information provided during the webinar, please reach out to us any time. We are always happy to help!