A New WCRC Contractor, Changes to Allocations and the WCMSA Reference Guide
The Centers for Medicare and Medicaid Services (CMS) is tasked with approving future medical plans in settlements for workers’ compensation claims of Medicare beneficiaries or those who will soon become Medicare eligible. Known as Workers’ Compensation Medicare Set-Asides (MSA), these plans may be submitted to CMS who, in turn, contracts with a Workers’ Compensation Review Center (WCRC) contractor to review the proposed plans and supporting documentation and issue approvals. After a September 1, 2017 contract award, Capitol Bridge, LLC became the WCRC contractor on March 19, 2018, taking over from Provider Resources, Inc., who had the contract since 2012. Capitol Bridge has a 25-year history of providing various support services to CMS and its current contract extends five years.
At the time of the March 2018 transition, Capitol Bridge announced goals of a 20-business day turnaround time after receipt of a complete submission and where indicated, determination letters seeking additional information were to issue within 10 business days. Consistent with these goals, the current turnaround time is around three weeks if no development letter is issued. Capitol Bridge advised its review staff would consist of experienced MSA nurse reviewers (all who hold Medicare Set-Aside Certified Consultant credentials), Medicare Secondary Payer (MSP) compliance attorneys, and physicians and pharmacists along with well-versed administrative staff. While Capitol Bridge also announced there would be no changes to calculation methodologies, some aggressive changes have been seen in Capitol Bridge’s approvals.
Urine Drug Screenings: One such change involves the allocation of quarterly urine drug screenings for claimants taking Schedule II opiate medications. Prior to summer 2018, the standard allocation generally had one annual drug test. Capitol Bridge’s rationale however is that quarterly urine drug screenings are appropriate given the 2015 prescribing requirements for Schedule II drugs whereby a single monthly prescription with no refills and no more than three monthly prescriptions between visits were allowed. While this also reflects current heightened awareness of opiate risks and abuse, evidence-based medicine guidelines do not support quarterly screens. Neither the Official Disability Guidelines, the Centers for Disease Control Guidelines, nor the Pain Management Physicians Guidelines recommend automatic quarterly urine drug screenings. These sources urge drug testing based on the treating physicians’ assessment of risk and on a patient-specific, rather than formulaic, basis. In addition, the pricing for individual drug screenings has increased to the $115.00 to $140.00 per test range. Thus, the pricing for quarterly urine drug screenings significantly increased many MSAs and proved too costly for many settlements. After receiving industry-wide negative feedback, it is our understanding that CMS may instead return to projecting urine drug screens based on current and past treatment patterns. It remains to be seen whether this policy will be implemented by Capitol Bridge and the over-allocation of urine drug screenings adjusted.
Lyrica: Another change having significant cost implications is the allocation by Capitol Bridge of prescription Lyrica for chronic lumbar pain or neuropathic pain associated with lumbar radiculopathy. At several dollars per pill, brand-only Lyrica is FDA-approved to treat diabetic peripheral neuropathy, fibromyalgia, partial seizures, post-herpetic neuralgia, and neuropathic pain associated with spinal cord injuries. So, allocating Lyrica for radicular lumbar pain is an off-label, non-FDA-approved use that would not be covered by Medicare or included in MSAs.
However, in September 2018, Capitol Bridge started including Lyrica in MSAs, though prescribed for off-label neuropathic pain. In allocating Lyrica for chronic lumbar pain or neuropathic pain associated with lumbar radiculopathy, Capitol Bridge stated that Lyrica may be covered under Medicare if the individual carrier determines the use to be medically accepted after taking into consideration the major drug compendia, authoritative medical literature, and/or accepted standards of medical practice. According to its WCMSA Reference Guide, when reviewing prescribed medications, the WCRC will “include medications that are Food and Drug Administration (FDA) approved or supported for inclusion in the approved compendia.” (See Sec. 9.4.4). Micromedex’s DrugDex database and the American Hospital Formulary Service Drug Information database are identified as CMS’ preferred compendia for determining off label usage. If either or both compendia establish a medically-accepted off-label use or non-FDA-approved use of the drug, the medication is considered to be covered and reimbursable by Medicare. (See Sec. 18.104.22.168). When challenged in re-reviews of approved MSAs, Capitol Bridge noted that Lyrica has off-label indications listed in recognized compendia and peer review sources which would be covered under Medicare Part D benefits and should therefore be included in MSAs.
Another theory for Capitol Bridge’s inclusion of Lyrica was an expansion of the definition of “neuropathic pain associated with spinal cord injury” which, again, is an FDA-approved use. Capitol Bridge interpreted spinal cord injury to include neuropathic pain secondary to lumbar radiculopathy. This interpretation was in fact confirmed in the newest release of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, Version 2.9 released on January 4, 2019. Lyrica thus remains in the WCMSA when prescribed for radicular pain.
“Possible” yet Unlikely Surgeries: As part of future medical care projections, treating physicians often refer to possible surgical procedures if certain conditions develop or events occur. These statements are not conclusive or firm recommendations. Rather, they are references, made almost in passing and usually as part of a “laundry list” of potential treatment. Sometimes, they appear only once in remote office visit notes. Nevertheless, Capitol Bridge has added many such surgeries in approved allocations. The WCMSA Reference Guide contains conflicting provisions, first stating that items recommended in the medical record will be included in a MSA regardless of whether it follows medical guidelines, although every effort will be made to not include services that are not recommended and to consider proposals on a case-by-case basis. Considerations include treatment and usage patterns, treating provider recommendations, and documented responses to treatment and effectiveness of therapies, as well as evidenced-based medicine. (See Sec. 9.4.4 at step 9) Capitol Bridge’s inclusion of speculative future surgeries should be challenged.
Spinal Cord Stimulators: While spinal cord stimulators have commonly been included in MSAs, the associated costs have greatly increased under Capitol Bridge. For several years, a default price of $30,274.00 was regularly allocated for initial and replacement implants with twice-annual reprogramming around $200.00 per service. Although the costs had jumped to the mid-$40,000 range, Capitol Bridge has now expanded the implant cost to $65,000.00 per procedure and doubled reprogramming pricing. At least in Illinois, recent medical fee schedule analysis confirms the increased costs, suggesting that earlier allocations were significantly undervalued. The recently released WCMSA Reference Guide, Version 2.9 supports this observation and provides clarification on pricing.
The WCMSA Reference Guide: As seen above, both the WCRC and submitters consider, cite and rely upon the WCMSA Reference Guide in proposing and approving MSAs. The Reference Guide’s stated purpose is to understand the process used by CMS for approving proposed MSA amounts and as a reference for MSA submitters to CMS for approval. Although the Reference Guide consolidates information into a single point of reference, the most recent document is 135 single-spaced pages. It is periodically updated and in 2018, two updates were released. Version 2.7 of the Guide was issued on March 19, 2018 to coincide with Capitol Bridge’s WCRC contract. Along with providing contact information for Capitol Bridge, a revised confidentiality provision clarified that explicit written consent/authorization from a Medicare beneficiary is required to obtain information from CMS.
The second update, Version 2.8, was released on October 1, 2018 and implemented CMS’ policy to discontinue use of Social Security numbers (SSN). In their place, CMS is in the process of distributing Medicare Beneficiary Identifiers (MBI) for each Medicare beneficiary. The MBI is also referred to as the Medicare ID. During the transition process, the traditional HICN (health insurance claim number consisting of the SSN plus the alphabetical Medicare Part designation) is still accepted. The MBI will be used on MSA submission documents and also letters from CMS regarding approvals, development, and review threshold determinations.
The other Version 2.8 change involved formatting of steps used by the WCRC to verify proper jurisdiction and calculation source for MSAs. Under this provision, jurisdiction may be where the claim was filed, where the Claimant resides, the employer’s location, and possibly the location of the parties’ representatives. Rules for the use of state workers’ compensation fee schedules or actual charges where no state schedule exists, as well as special rules for certain federal worker claims, were also re-formatted. Lastly, Version 2.8 also provided a link to updated CDC life expectancy tables and referenced a requirement for written justification for use of rated-age figures.
As noted above, CMS released Version 2.9 of the WCMSA Reference Guide on January 4, 2019. The Guide identified changes in the formatting of Development letter and Alert templates, the need to use 2015 CDC lifetables and the removal of certain references to CMS memoranda. Spinal Cord Stimulator pricing was clarified as well as the WCRC’s plan to use the non-rechargeable spinal cord stimulator replacement frequency as the default projection in the absence of information to the contrary. The WCRC also explained their position regarding the inclusion of Lyrica as a Medicare covered drug when used for lumbar radiculopathy. The Guide states that “radiculopathy is a type of neuropathy related to peripheral nerve impingement caused by injury to the supporting structures of the spinal cord.” In light of this, submitters should review all material to ensure that radiculopathy is truly the proper diagnosis in the claim.
The new Guide also added some additional bullets stressing CMS’ recommendation that parties use the voluntary CMS review process when settlements meet CMS’ internal workload review thresholds. CMS also cautioned that failure to meet CMS’ internal thresholds did not excuse parties from giving Medicare’s interests consideration in the settlement. Specific examples were provided. It would appear that these additional admonishments are a response to the growing trend of non-submit programs. We will keep you advised of further developments.