Get “Informed” About the New Consent to Release for Medicare Set-Asides

4.27.2020 Blog

Approval of Workers’ Compensation Medicare Set-Asides (WCMSA) by the Centers for Medicare and Medicaid Services (CMS) remains the “gold standard.”  WCMSA funds, first approved by CMS and then properly exhausted, guarantee Medicare will take over as primary payer for further treatment costs.  And while submission of a WCMSA to CMS for approval is voluntary, CMS strongly encourages litigants to obtain approvals.  However, in October 2019, CMS amended its WCMSA Reference Guide and Consent to Release document to require claimants understand the contents of a WCMSA submission, as well as the submission process and WCMSA administration, and agree to the proposed submission.  This new WCMSA Consent to Release thus added an extra hurdle to submission of WCMSAs to CMS for approval.

Informed Consent

The new requirement compels informed consent for claimants.  A complete understanding of WCMSA proposals, supporting submission materials, and the overall process will be challenging for those unfamiliar with the system.  Initially, claimants, and sometimes their representatives, often do not understand the need or requirement for WCMSAs.  A submission consists of at least seven separate parts: a submitter letter, the signed consent, a rated age evaluation, the WCMSA proposal, treating medical records from past two years or last two years of injury-related treatment (if no longer treating), current two-year history of prescription drug usage, and claim payment histories.  The WCMSA proposal should delineate accepted and denied conditions and treatment and only project care based on past treatment and legitimate future recommendations.  Sharing submission documents will be interesting at best.

Claimants may disagree with disputed and denied parts of claims – and the exclusion from WCMSAs of body parts, medical conditions, or specific treatment including prescription drugs.  The impact of individual state workers’ compensation laws or procedures on the MSA analysis is not common knowledge among laypeople.  Claimants may not realize CMS conducts an independent review of submission materials and could approve a higher or lower WCMSA figure.  Or that employers can decide to fund the CMS-approved amount or keep medical rights open.  Claimants may not know an approved and funded WCMSA establishes a pool of money from which future related care should be paid, but that actual care will likely differ from medical services and procedures included in the submission and approval.  These are but a few of the questions and concerns to be addressed by the informed consent process.

Informing claimants of the process and substance of WCMSA submissions will understandably impact claims handling and obtaining settlements.  The timing of submissions is affected, too. The gathering, analysis and presentation of a WCMSA proposal and supporting documentation involves a snapshot in time based on current medical records including prescription medication histories and payment logs.  Seeking claimants’ consent may delay the submission process and even render submission documentation stale or incomplete.  In such cases, the submission packet will change and the consent process stall.

Informing and Involving the Parties

Informing claimants means involving knowledgeable MSP professionals.  A one-size-fits-all approach cannot address fact-specific explanations or claimants’ questions and concerns.  In requiring detailed communication and explanation about the preparation of a WCMSA proposal and the process of submitting proposal to CMS for approval, the new Consent requirement will facilitate informing and involving all parties.  As attorneys well-versed in both MSP expertise and workers’ compensation experience, we can inform the parties throughout the WCMSA analysis and submission process.

Where submission of a WCMSA is indicated, we recommend WCMSA proposals and supporting submission documentation be shared electronically by secured email with a claimant and his/her attorney.  If desired, a follow-up phone conference with the claim handler, the claimant, claimant’s attorney, and the MSP professional/WCMSA submitter, would allow full explanation of the WCMSA proposal and accompanying submission documents and an opportunity to address any questions and concerns.  Where appropriate, claimants might allow their representatives to sign off on submissions.  These measures will work during the current shelter-in-place orders, as well as when more normal business practices resume.

In our view, MSP professionals, and particularly attorneys specializing in MSP compliance, should participate in settlement discussions.  When prepared by an experienced and knowledgeable attorney-specialist, a proposed WCMSA can reflect settlement value and address disputed and denied injuries and unrelated conditions.  In such circumstances, the informed consent requirement might promote cooperation and a better meeting of the minds regarding resolution of claims.

As attorneys with MSP credentials and solid workers’ compensation backgrounds, our MSP professionals can provide explanations, answer questions, defend our proposals and submissions, and help clients reach desired results.  For starters, our MSP attorneys recently identified open WCMSA files where submission is likely and sent claimants and their counsel an outline of the new requirements and a sample of the new Consent form.  We are ready to help you navigate the new Consent to Release submission process.  Contact any MSP team to discuss your needs and questions.

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.