WORKERS' COMPENSATION

B. Josh Pettingill

We frequently receive inquiries regarding workers compensation MSAs (WCMSAs) and whether it is possible to get CMS (Centers for Medicare and Medicaid Services) to re-review an MSA once an amount has already been approved. The good news is that it is possible. However, you only get one opportunity and certain criteria must be met to qualify. It is vital for claimant/applicant attorneys to audit their files to see which cases may be eligible.

For years, CMS only allowed a re-review of an WCMSA in two limited circumstances: 1) blatant errors and mistakes with the report or 2) omission of pertinent documentation from the submission. In many instances, the claimant’s medical condition may have improved considerably since the approval letter was issued. Accordingly, it was becoming cost prohibitive then for the carrier to resolve the claim if they must overfund an MSA that does not match the injured worker’s current medical condition.

However, CMS changed their position recently. There are situations where CMS will actually take the time to re-review the WCMSA. Per the Workers Compensation MSA Reference Guide, the following guidelines for the case must be met to be eligible for an amended review[1]:

• CMS has issued a conditional approval/approved amount at least 12 but no more than 48 months prior.
• The case has not yet settled as of the date of the request for re-review.
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Takeaway – an Amended WCSMSA Review is Possible in Certain Circumstances

If you have a case that was approved even a day beyond four years ago or less than a year ago, then you are stuck with the original approved MSA amount. As of this writing, there is still no formal appeal process for WCMSAs. But, at least you now have the option for an amended review in certain circumstances. Do not let an overinflated, CMS approved WCMSA be a barrier to resolving a workers’ compensation case. Whether it is the first time for CMS approval or an amended review, Synergy’s team of experts can help to ensure a timely settlement while maximizing the recovery.

In our next post, we will discuss Evidence Based MSAs, the implications of getting one and not submitting to CMS for review/approval. To learn more about Synergy’s Workers’ Compensation Medicare Set-Asides, visit our website.

[1] https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Reference-Guide-Version-2_9.pdf