The Centers for Medicare & Medicaid Services (CMS) released Version 3.8 of the Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide on November 14, 2022. Notably, this update provides clarification relative to 1) re-review requests when errors exist in submission documentation; and 2) re-review limitations.
By way of background, when parties voluntarily submit a WCMSA proposal to CMS and the agency “does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed [known as a “counter-higher”], there is no formal appeals process [to contest this determination].” See WCMSA Reference Guide, v3.8, Sec. 16.1. However, there are several options CMS provides for a submitter to make a showing that the amount should be different than CMS’ determined counter-higher amount.
CMS allows for the submission to the Workers’ Compensation Review Contractor (WCRC) “with additional documentation in order to justify the original proposal amount.” “If the additional information does not convince the WCRC to change the originally submitted WCMSA amount… [a] request for re-review may be submitted based [on] one of the following” via the Re-Review Process, found at Sec. 16.1:
1) Mathematical Error – Where the submitter disagrees with CMS’ decision because the agency’s determination contains obvious mistakes (e.g., a mathematical error or failure to recognize medical records already submitted showing a surgery, priced by CMS, that has already occurred).
2) Missing Documentation – Where the submitter disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal, and which warrants a change in CMS’ determination.
New to version 3.8 of the WCMSA Reference Guide, CMS provides for a re-review procedures around a “submission error” listed as #3 in Sec. 16.1, as follows:
3) Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual.
Regarding this procedure, CMS notes that “[t]his submission option is only available for approvals from September 1, 2022 forward.” Moreover, CMS provides examples relative to submission errors, which may include, but are not limited to: “medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.” See Sec. 16.1(3).
CMS also adds the following limitations affecting approvals from September 1, 2022 forward:
- Re-review shall be limited to no more than one request by type.
- Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.
- Re-Review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.
See Sec. 16.2 “Re-Review Limitations” in v3.8 of the WCMSA Reference Guide.
These clarifications regarding re-review requests and re-review limitations should be noted by submitters and those preparing WCMSA proposals for submission. This recent update of to the WCMSA Reference Guide reinforces that Medicare Secondary Payer (MSP) compliance obligations and guidance are constantly evolving, including recent clarification around the use of non-CMS-approved MSAs in version 3.6 of the WCMSA Reference Guide. If you have any questions about MSAs or professional administration, please contact our team of experts.
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