Updated CMS WCMSA Reference Guide Version 3.9: CMS Removes Maximum Time Limit for Amended Reviews; Provides Clarification for Implantable Devices

By: Kristina Bonanno

The Centers for Medicare & Medicaid Services (CMS) published an update to the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (Version 3.9, updated May 15, 2023). Updates to the amended review maximum time limit, medical review guidelines, CMS Regional Office participation in approving initial determinations, and other miscellaneous updates are discussed below.

Section 16.3 – Amended Review

Arguably the most noteworthy change in this version of the Reference Guide is that CMS has now removed the maximum time limit for eligibility for the amended review process. When CMS originally released their amended review process in 2017, reviews were limited to cases where CMS had issued an approved Medicare Set-Aside (MSA) amount at least 12 months but no more than 48 months prior. In 2019 CMS expanded this review period to 72 months. CMS has now removed this time limit altogether, although it still must be at least 12 months since CMS issued an MSA determination amount before a file is potentially eligible for an amended review.

The removal of the 72-month maximum time restriction now opens the door for older claims to be re-evaluated by CMS assuming there is a valid basis for the amended review request. As a result, previously unsettled claims due to a disputed MSA determination amount may finally reach settlement.

Section 9.4.5 Medical Review Guidelines

CMS has now added guidance for the replacement of Peripheral Nerve Stimulators (PNS) and has provided clarification regarding intrathecal pump (IT pump) and spinal cord stimulator (SCS) replacement frequency calculations. Previously, the claimant’s life expectancy was divided by 7 for IT pumps and either 7 or 9 for SCS(depending on whether the unit is rechargeable or not), the decimals were dropped, and the remaining whole number was used to determine replacement over lifetime—regardless of whether the device was already implanted or not.

With this update CMS has provided clarification that if the device is not yet implanted, CMS assumes that it will be implanted within the 1st year following settlement or at the next routine interval for replacement. This allows for one year to be removed from the life expectancy before the replacement calculation is completed. If the device has already been implanted, the difference from when the last device was implanted is subtracted from the life expectancy prior to the replacement calculation.

This clarification provided by CMS allows for clients to potentially benefit from a more realistic replacement calculation, especially in cases where a device has already been implanted.

The CMS Regional Offices are no longer responsible for approving initial determinations

This was an expected change that CMS had alluded to earlier this year during the Request for Proposal period for a new Workers Compensation Review Contractor (WCRC). Previously when the WCRC completed their review and made their MSA recommendation, the case would be sent to the appropriate Regional Office (RO) for final review and approval. Now, the WCRC will complete their review, make their recommendations, CMS will issue an approval letter for that amount without additional review, and then the case will be transferred to the appropriate RO to await receipt of the final settlement documents needed to close the case.

There is no indication of how often the RO may have disagreed with the WCRC’s decisions under the prior process so it is difficult to estimate whether there will be a substantial impact with this new change. However, the CMS re-review and amended review processes remain available to parties to challenge the MSA amount if necessary.

Other updates:

Version 3.9 of the Reference Guide also includes the following changes:

·       All WC letters currently signed with CMS’ Director of Financial Services Group name and signature image have been updated to reflect the current CMS customer service contact information (Appendix 5).

·       The 94585 ZIP code has been added to the Walnut Creek Medical Center in the table listing major medical centers (Appendix 7).

·       The CDC Life Table link was updated (Section 10.3).

Sanderson Firm Commentary:

We are pleased that CMS took industry feedback into account by providing clarification around implantable device replacement calculations and removing the maximum time restriction for amended reviews as many claims remain open for more than 6 years after CMS has issued a determination due to counter higher MSA amounts issued by CMS, treatment issues, or other settlement factors.

Sanderson Firm’s team of highly skilled legal and clinical experts are readily available to provide comprehensive assistance in reviewing claims where the Centers for Medicare & Medicaid Services (CMS) has previously issued a determination, but the claim remains unsettled. We can determine whether an amended review is now feasible and can significantly contribute to settling the claim. This invaluable review service is completely free of charge.  If you have any inquiries or concerns pertaining to the recent update in the CMS WCMSA Reference Guide or any other matters related to Medicare Secondary Payer (MSP) compliance, we encourage you to reach out to us without hesitation. Our team is well-equipped to address your questions and provide expert guidance.