The Centers for Medicare and Medicaid Services (CMS) just published version 3.0 of their Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide. The Guide was initially published to bring all of the various memoranda into one place, and to provide WCMSA submitters with even more specific guidelines on the various aspects of WCMSAs. CMS normally publishes two updates to the Reference Guide per year, with some versions having more substantive changes than others. Here are some highlights of the changes in Version 3.0, with my commentary:
- New Consent to Release Form. As of April 1, 2020, all Consent to Release Forms must include language, initialed by the beneficiary, asserting that the beneficiary reviewed the submission package and understands the WCMSA intent, submission process, and associated administration. This will render all Consent to Release Forms without this addition moot as of April 1, 2020. This must be kept in mind for cases where consent forms have been already signed by the Beneficiary where the MSA has yet to be submitted. Author’s note: This appears to have been added out of concerns that the industry has been submitting WCMSAs without the claimant’s review and approval, and sometimes before settlement was reached. This is another example of how CMS is trying to reign in the industry from being overzealous in submitting MSAs without consideration to the beneficiary. Another possible concern arises with disputed conditions. Claimants do not always fully grasp legal issues, so requiring them to “sign off” on an MSA that outlines the disputes could prove disastrous.
- Added protection for long-term opioid prescriptions and other frequently abused drugs. The Reference Guide now states that CMS “highly recommends professional administration where claimant is taking controlled substances that CMS determines are ‘frequently abused drugs’ according to CMS’ Part D Drug Utilization Review (DUR) policy.” A link is provided to that policy, which specifically states that CMS’ Part D drug management sponsors may limit at-risk beneficiaries’ access to coverage of “frequently abused drugs,” and may limit the beneficiary to using one or more selected prescribers or pharmacies to obtain these drugs. Section 17.3 of the User Guide now also requires that WCMSA funds be competently administered in accordance with all Medicare coverage guidelines, including but not limited to CMS’ Part D Drug Utilization Review (DUR) policy. CMS therefore recommends that all WCMSA administration programs “should institute drug management programs (DMPs) for claimants at risk of abuse or misuse of frequently abused drugs.” Author’s note: This is a welcome addition from both a humanitarian and societal perspective, since WCMSAs historically could leave beneficiaries with a large sum of money for purchasing these frequently abused drugs, but without the safety net that would normally be allowed through the Part D plan’s DUR program. These sections allow professional administrators to now take similar actions to Part D programs, which seemingly can limit the number of prescribers and pharmacies utilized to obtain these FADs. Professional administrators must follow the Guidelines in the Federal Register, which allow for retrospective drug utilization review and case management. This has been a hot topic on Nyhan, Bambrick, Kinzie & Lowry’s plate. Please read more about the background of our concerns here. The National Alliance of Medicare Set-Aside Professionals (NAMSAP) has also been very involved with this topic, and I personally have had the opportunity to meet with CMS officials in Baltimore on several occasions. During our April meeting, we proposed these types of additions. This is a great win for the fight against opioid addiction and misuse. Another item to note: funds in the MSA may only be used for treatment or prescription drugs which Medicare would normally cover. Accordingly, these administration requirements likely apply regardless of whether the MSA was actually submitted for CMS approval.
- Updated the life expectancy table to the 2016 tables. Author’s note: This will probably change soon when the 2017 tables are released.
- Allows for electronic upload of self-and professional-administration annual attestations for the WCMSA. Beneficiaries and professional administered alike will now be able to upload annual attestations and exhaustion letters through the MyMedicare.gov and the WCMSA portal, respectively. Author’s note: This will hopefully allow CMS to more efficiently track WCMSA amounts, exhaustion and compliance. Beneficiaries may still submit yearly attestations materials by mail.
- Amended review requests have been extended to six years. The Amended Review process previously added allowed CMS to review previously-approved MSAs, one time only, provided the original approval letter was dated between 12 and 48 months prior. This has now been extended to 72 months, which gives a window of one to six years for amended review. Author’s note: We have been asked for years about what to do with “stale” MSAs, meaning old MSAs or MSAs where treatment has significantly changed. Amended review is now available when an old, CMS-approved MSA is between one and six years old. All of the other Amended Review requirements remain the same.
For the MSA nerds, there are some smaller changes, such as:
- Updating and standardizing the “death of a claimant” information to avoid contradictions between the reference guide and the self-administration tool kit;
- Clarifying how hospital Fee Schedules are determined – rather than using DRG payments for “a major medical center within the state,” hospital Fee Schedules for WCMSAs will be determined by using the DRG payment for the “median major medical center with the appropriate fee jurisdiction for the pricing zip code, unless otherwise defined by state law;”
- The sample submission was moved to Appendix 6;
- Some CMS mailing addresses were updated;
- Appendix 1 was amended to omit a note saying that the WCMSA portal will only display information for cases submitted through the portal. We now know that all approved WCMSAs (even those originally submitted on paper or on CD years ago) can be accessed through the WCMSA portal since annual attestations will be uploaded in that way; and
- Removed Appendix 8, which was just a chart of historical changes made to the Reference Guide.
Overall, we are very excited about the changes to the Reference Guide dealing with opioids. This is a welcome protection from public policy and health standpoints. We do have concerns about the change with the consent form. It will be difficult for beneficiaries to sign a Consent to Release form at the start of a claim, as the industry normally asks, because the consent form now requires the beneficiary to initial language indicating they approve of the contents of the submission. This may mean claimants, and/or their attorneys, are more hesitant to sign the consent until the claimant has reviewed and approved the MSA proposal. Furthermore, asking a Claimant to review and approve the MSA proposal may hamper settlements. As we all know, a Claimant’s perception of a compensable condition may be at odds with what is actually legally compensable.