Answers by Amy

Apr 27, 2020

 

While development letters (CMS letters asking for additional information for a submitted MSA) have slowed over the last several months, we are still seeing them, nonetheless.  We also are hearing from clients that they have old cases which seem “stuck” because CMS is asking for additional medical records that do not exist, or which they are unable to obtain.  The question posed to me was:  What do you do when CMS will not approve a WCMSA proposal, and instead demands records that do not exist or are impossible to obtain?

We often see this situation where a Petitioner remains on medication after being released from their surgeon.  While there is no one sure-fire way to move such a case through, there are many things that can be tried.  Obviously, options will vary based on jurisdiction and the status of the underlying case (whether it be closed or open for subpoena in your jurisdiction), but here are some possible options that have worked for us:

  • Issue a subpoena to, or request records with the proper authorization from, the medical provider currently prescribing any medication to the claimant.
  • Issue a subpoena for the records from the last known treating medical provider which includes a certification page that asks the provider to input the last date of treatment.
  • Issue a subpoena to, or request records with the proper authorization from, medical records from the beneficiary’s primary care physician and submit those in response.
  • Verify you have all the medical records associated with the medical payment ledgers as CMS cross references these. Also, make sure that the final medical record has a release “as needed,” “PRN” or “maximum medical improvement.”
  • If you do not know where the individual has been seeking treatment but do know where the individual currently lives, consider a medical sweep to identify treating medical providers.
  • Request records from the individual state’s prescription drug monitoring program, if available.
  • Obtain a signed affidavit from the claimant attesting to the last date of injury-related care, which includes an attestation that the document was prepared under the penalty of perjury.
  • Try to get a certification from the treating physician of the last day of injury-related care. You may even need to enlist the assistance of a nurse case manager, or even approve one additional visit to the doctor and follow-up where the lack of any interim treatment needs to be clarified.

Ultimately, the CMS submission process is a voluntary one, and parties cannot “make” CMS review and approve their MSAs.  However, a development letter that asks parties to effectively “prove a negative” cannot be replied to because documents are either unavailable or nonexistent also creates a problem for CMS; it reduces the number of cases they use in their data in support of their claim that the MSP program saves money for the Medicare system as a whole.  It is ultimately in CMS’ interest to reply to as many WCMSA proposals as possible.  I recently spoke with CMS about this issue, and we are working to find a solution that satisfies both CMS and the parties in workers’ compensation claims.  In the meantime, these are some of the things that worked for our office in our submissions.

There is obviously no “cookie cutter” answer to get your case out of development in these situations.  These situations call for creativity and proactivity.  If you have had trouble getting CMS’ response after development letters like this, we are always available for consultation, and we ensure the NBKL team will take every step we can to bring a conclusion to your WCMSA submissions.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law. 

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-Larry Collins, Senior Director, Risk Management Marriott Claims Services, Chicago

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