The Five Percent Rule and the Review

12.14.2018 Blog

Most workers’ compensation practitioners and claims handlers know that the Workers’ Compensation Review Contractor (WCRC) for the Centers for Medicare and Medicaid Services (CMS) conducts an independent review of Workers’ Compensation Medicare Set-Aside proposal submissions. The Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (Version 2.8) outlines the WCRC medical review process. Should the WCRC determine that a counter higher or counter lower determination is appropriate, the reviewer is expected to include an explanation outlining the decision rationale for the determination. If the WCRC’s recommended WCMSA amount is within five percent of the submitter’s total proposed WCMSA amount, the submitter’s proposed amount is accepted as the WCRC’s recommendation. Depending upon the amount of the submitted proposal, the dollar figure may not be insubstantial.

Although the “five percent rule” is generally considered in the context of submissions, it also applies to certain decisions on re-review. Pursuant to Section 16 of the WCMSA Reference Guide, parties that disagree with the CMS determination may request a re-review in certain situations. Re-review is available when the parties claim CMS’ determination contains a mathematical type of error or there is additional evidence that predates the submission which would support a change in CMS’ determination. The amended review process, also outlined in Section 16, has additional requirements that must be met before it is available to parties.

Our office recently persuaded CMS to remove certain diagnostic studies based on an evidence-based medicine argument. The removal of the diagnostic studies from CMS’ counter higher placed the CMS determination within five percent of our submission. By making the argument on re-review, we were able to save our client $9,269.00 by just removing $663.00 in diagnostics since our original submission was now within five percent of the updated WCRC recommendation. Not a bad return on a seemingly “little” win. Contact our team of MSP compliance attorneys to see how we may help you.


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.