Version 3.0 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide was published by Centers for Medicare and Medicaid Services (CMS) on October 10, 2019. Although the Guide had several noteworthy changes, the revised language of the new Consent to Release note will have an immediate impact on your WCMSA submission process. As of April 1, 2020, the Consent to Release note will require the Claimant to include his/her initials under language that states: “ Further, I have had the Workers’ Compensation Medicare Set-Aside Arrangement need and process explained to me, and I approve of the contents of the submission.” This means that that Claimant reviewed the WCMSA submission packet, understands the purpose behind the WCMSA, the submission process and the proper administration of the WCMSA funds. (Section 10.2 of the Reference Guide)
While CMS’ desire to encourage informed consent is noble, the change in the Consent to Release note process fails to consider some of the practical aspects of claims handling and certain settlements. For example, it may be difficult for a Claimant in a disputed claim to understand that the WCMSA submission packet will seek a waiver for the future treatment associated with the disputed condition. A Claimant may also fail to understand that CMS is not bound by the proposed WCMSA figure and will instead complete an independent review of the medical records. Should CMS return a figure that is unacceptable to the Employer, the Employer may decline to fund CMS’ counter proposal. Furthermore, the nuances of the WCMSA submission process are not always grasped by the parties. Cookie cutter explanations of the WCMSA submission packet and process, without an understanding of the underlying workers’ compensation laws and Medicare Secondary Payer compliance laws, won’t yield the desired results.
Although the new Consent to Release note process is somewhat flawed, CMS’ review of the WCMSA proposal remains the gold standard when it comes to Medicare Secondary Payer Compliance. Our team of experienced Medicare Secondary Payer compliance attorneys, all with workers’ compensation backgrounds, are here to help you navigate the new Consent to Release note submission process.