In the third installment of his seven-part blog series on issues related to the Medicare Secondary Payer industry, Rafael Gonzalez, Esq., president, Optum Settlement Solutions, provides a detailed review of the changes in the Centers for Medicare & Medicaid Services’ Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide.
On October 10, the Centers for Medicare & Medicaid Services (CMS) published its latest Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. Changes include:
- Hospital fees will be determined using the Diagnosis-Related Groups (DRG) payment schedules.
- Beneficiaries must attest they have reviewed the submission package and understand the WCMSA intent, submission process, and associated administration.
- CMS will project the cost of the claimant’s future treatment over the claimant’s life expectancy using the latest available Centers for Disease Control Life Tables.
- CMS will allow re-review when it has approved a WCMSA amount at least in the previous 12 months, but no more than in the previous 72 months.
- CMS highly recommends professional administration where a claimant is taking controlled substances that CMS determines are frequently abused drugs.
- All WCMSA administration programs should institute Drug Management Programs for claimants at risk for abuse or misuse of frequently abused drug.
- Injured workers who self-administer their own WCMSA account can submit yearly or final attestations electronically.
- Professional administrators may electronically submit more detailed account transactions and can also view WCMSA account balance information.
- If a claimant dies before the WCMSA is completely exhausted, CMS will ensure that all claims have been paid. Any amount left over in the WCMSA may be disbursed pursuant to state law, once Medicare’s interests have been protected.
What follows is a more detailed review of the changes found in Version 3.0.
9.4.3 WCRC review considerations
The Workers Compensation Review Center (WCRC) strives to comply with the laws of the state determined to be the appropriate state of venue. The reviewers research the applicable state regulations and fee schedules.
In previous years, the WCRC has priced WCMSAs using the highest fee schedule zone possible within any state that uses fee schedules. Currently the WCRC prices WCMSAs according to the correct region for the state of venue. New here is that “hospital fee schedules will be determined using the Diagnosis-Related Groups (DRG) payment for the median Major Medical Center within the appropriate fee jurisdiction for the pricing ZIP code, unless otherwise defined by state law.”
10.2 Consent to Release Note
The Consent to Release Note is the claimant’s signed authorization for CMS, its agents and/or contractors to discuss his or her case/medical condition with the parties identified on the authorization regarding the WC settlement that includes a WCMSA.
New here is that as of April 1, 2020, all consent-to-release notes must include language indicating that “the beneficiary reviewed the submission package and understands the WCMSA intent, submission process, and associated administration. It must include at least the beneficiary’s initials to indicate their validation.”
10.3 Rated Age Information or Life Expectancy
All rated ages shall be accompanied by a written justification on how such age was determined. For example, if a rated age obtained from life insurance companies for like injuries/illnesses is the method of evaluation, the submitter must include documentation to support the life expectancy. New here is that CMS will project the cost of the claimant’s future treatment over the claimant’s life expectancy, using the latest available Centers for Disease Control (CDC) Tables.
16.2 Amended Review
CMS will permit a one-time request for re-review if the case has not yet settled as of the date of the request for re-review, the projected care has changed so much that the submitter’s new proposed amount would result in a 10 percent or $10,000 change (whichever is greater) in CMS’ previously approved amount. New here is the extension of permission for such a re-review when “CMS has issued a conditional approval/approved amount at least in the previous 12 months, but no more than in the previous 72 months (six years).”
17.1 Administrators
WCMSAs should be administered by a competent administrator (a professional administrator, the representative payee, the claimant, etc.). When a claimant designates a representative payee, appointed guardian/conservator, or has otherwise been declared incompetent by a court, the settling parties must include that information in their WCMSA proposal to CMS.
New here is that CMS now “highly recommends professional administration where a claimant is taking controlled substances that CMS determines are “frequently abused drugs” according to CMS’ Part D Drug Utilization Review (DUR) policy.
17.3 Use of the Account
WCMSA funds may only be used to pay for medical services and prescription drug expenses related to the work injury. CMS expects that WCMSA funds be competently administered in accordance with all Medicare coverage guidelines.
New here is that this now includes but is not limited to CMS’ Part D Drug Utilization Review (DUR) policy. As a result, all WCMSA administration programs should institute Drug Management Programs (DMPs), for claimants at risk for abuse or misuse of frequently abused drugs.
17.5 Annual Attestation and Record-Keeping
The administrator of a WCMSA account will be responsible for keeping accurate records of payments made from the account. Every year, the administrator must sign and send a statement that payments from the WCMSA account were made for Medicare-covered medical expenses and Medicare-covered prescription drug expenses related to the work-related injury, illness, or disease. New here is that “yearly attestation materials should be sent to NGHP P.O. Box 138832 Oklahoma City, OK 73113.”
17.6 Electronic Attestation
New here is that injured workers who self-administer their own WCMSA account, or representatives who may administer a WCMSA account in the portal, as well as beneficiaries logging in to the WCMSA Portal through the MyMedicare.gov link can submit yearly or final attestations electronically per the WCMSAP User Guide.
Also new here is that users with Professional Administrator accounts in the portal “may use a file submission process to submit more detailed account transactions related to WCMSAs they administer. They can also view WCMSA account balance information.”
19.2 Death of the Claimant
This is already indicated in the Self- Administration Toolkit for WCMSAs, but new here is that if a claimant dies before the WCMSA is completely exhausted, the Regional Office and the Benefits Coordination & Recovery Center will ensure that all claims have been paid. “Any amount left over in the WCMSA may be disbursed pursuant to state law, once Medicare’s interests have been protected. This may involve holding the WCMSA open for some period after the date of death, as providers, physicians, and other suppliers are permitted to submit their initial bill to Medicare for a period of 12 months after the date of service. In addition, the terms of the settlement itself will sometimes dictate the appropriate dispersal of funds upon the death of the claimant and settlement of care-related expenses.”
Conclusion
CMS has announced several new changes for those entities/parties that still seek review and approval of their WCMSAs. Of significance to payers seeking such CMS approval is the fact that beneficiaries must now attest they have reviewed the submission package and understand the WCMSA intent, submission process, and associated administration.
In what is probably the best news for entities that may have once sought review of a WCMSA, but were unable to settle the file, re-reviews will now be allowed when CMS has approved a WCMSA amount at least in the previous 12 months, but no more than in the previous 72 months.
Indicating an industry wide concern for frequently abused drugs, CMS now highly recommends professional administration where a claimant is taking controlled substances. Furthermore, WCMSA administration programs should institute Drug Management Programs for claimants at risk for abuse or misuse of frequently abused drugs.
And, in what is clearly a new focus on post-settlement administration issues, injured workers who self-administer their own WCMSA account can now submit yearly or final attestations electronically, while professional administrators will be able to electronically submit more detailed account transactions and view WCMSA account balance information.
RISE will provide an update on the pending Workers Compensation Medicare Set-Asides Legislation at the Medicare Secondary Payer Master Class, Feb. 3-4, 2020, in Jacksonville, Fla.
Editor’s note: This is the third installment of a seven-part blog series. The first post focuses on the accessibility of open debts reports. The second post reviews the calculation of annual recovery thresholds for certain liability insurance, no-fault insurance, and workers’ compensation settlements, judgments, awards, or other payments.
About the author
Rafael Gonzalez, Esq. is president of UnitedHealth Group/Optum’s Workers Compensation and Auto No-Fault Settlement Solutions and based in Tampa, Fla. With 35 years of social insurance experience, he oversees the organization’s mandatory reporting, conditional payments, and set aside allocation process and services. He blogs on liability, no-fault, workers’ compensation, social security, and Medicare/Medicaid issues at www.MedicareInsights.com. He speaks throughout the country on these substantive issues and is engaged in the workers’ compensation, social security, and Medicare/Medicaid legislative process at both the state and federal levels. He is active on social media, including LinkedIn, Twitter, Facebook, Instagram, and YouTube. He can be reached at rafael.gonzalez1@optum.com or at 813.967.7598.