The Centers for Medicare and Medicaid Services recently released Version 3.0 of its WCMSA Reference Guide, what we informally call the “MSA bible.” The reference guide provides most CMS policy and procedures relating to its review of workers’ compensation Medicare set-asides.

Dan Anders

The updated guide can be found here. Notable additions or changes to this version are detailed below with takeaways and comments.

Amended review criteria expanded to six years

CMS has expanded the amended review MSA lookback from one to four years to one to six years post the prior MSA approval. As a refresher, the amended review process in Section 16.2 allows a new MSA to be submitted following a prior approval if all of the following criteria are met:

• CMS has issued a conditional approval/approved amount at least 12 but no more than 72 months prior.
• The case has not yet settled as of the date of the request for re-review.
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Tower appreciates CMS expanding the lookback to six years, as this should allow for more cases to be submitted through this process and potentially settle with an MSA that better reflects the claimant’s current and future course of treatment.

Claimant authorization to submit added to consent-to-release form

Longstanding policy requires that any MSA submitted to CMS must include a consent-to-release form signed by the claimant. The primary purpose of the document is to provide Medicare beneficiary authorization for CMS to communicate with the MSA submitter concerning the workers’ compensation claim. 

Per the updated reference guide, effective April 1, 2020, consent must include the following language:

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.

Beneficiary initials: ____

As a result of the addition of this statement, CMS is effectively asking the claimant to approve the MSA along with supporting documents in the submission. We anticipate two consequences as a result of this addition:

• Claimants will sign the consent but forget to initial this section.
• Claimants will not sign the consent until such time as they review the MSA and perhaps the supporting documentation, i.e., medical records, which are submitted with the MSA.

While we understand CMS wanting to ensure the claimant understands the purpose of the MSA, we would assert this is already effectively done, in most cases, as part of the settlement process. 

At this time, Tower will continue to use the consent-to-release without the requirement that the claimant approve the MSA submission. However, we will need to begin using the revised consent as we get closer to April 1, 2020.

Submission of annual attestations through the WCMSAP

As we previously discussed, CMS is now allowing MSA self- and professional administrators to submit annual attestations through the Workers’ Compensation Medicare Set-Aside Portal (WCMSAP). Section 11.1.1. of the guide was updated to reflect the addition of this feature and a new Section 17.6 “Electronic Attestations” was added, which directs both MSA self- and professional administrators to the WCMSAP User Guide for further information on submitting annual attestations electronically.

Policies added to address opioid epidemic

CMS has been very active in the past two years at addressing the opioid epidemic among its Medicare beneficiaries. The exception to this has largely been the MSA program.

In an effort to address opioids in MSA, CMS added the following statement to section 17.1 on MSA administrators:

CMS highly recommends professional administration where a claimant is taking controlled substances that CMS determines are “frequently abused drugs” according to CMS’ Part D Drug Utilization Review (DUR) policy. That policy and supporting information are available on the web at https://cms.gov/Medicare/Prescription-Drug-Coverage/PrescriptionDrugCovContra/RxUtilization.html.

CMS takes this further in Section 17.3 by stating:

CMS expects 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. As a result, all WCMSA administration programs should institute Drug Management Programs (DMPs) (as described at https://www.gpo.gov/fdsys/pkg/FR-2018-04-16/pdf/2018-07179.pdf) for claimants at risk for abuse or misuse of “frequently abused drugs.”

While MSA professional administration is recommended for most MSAs, CMS is correct in asserting it is of special value for a claimant utilizing opioid medications. MSA professional administrators like our partner, Ametros, can readily provide the type of drug management program expected by CMS. We applaud CMS for implementing these guidelines addressing opioid use in MSAs.

Dan Anders is chief compliance officer at Tower MSA Partners LLC. This entry is republished with permission from the Tower MSP Compliance Blog.