Two years ago, the Centers for Medicare and Medicaid Services rolled out a policy that enabled submission of a new Medicare set-aside even if an MSA had previously been approved for the same date of injury.

Dan Anders

The purpose of this “amended review” is to provide parties who have not settled the case an opportunity to update the MSA to better reflect the current and future course of medical care. Since its implementation, this policy has allowed many parties in workers’ compensation cases to move forward with a settlement and closure of medicals.

Does your MSA qualify?

CMS provides the following base criteria for an amended review. Where the following criteria are met, CMS will permit a one-time request for re-review in the form of a submission of a new cover letter, all medical documentation related to the settling injuries/body parts since the previous submission date, the most recent six months of pharmacy records, a consent to release information and a summary of expected future care.

CMS has issued a conditional approval/approved amount at least 12 but no more than 48 months prior.

The case has not 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.

If you think your case may qualify, you should determine whether current medical records support a change in the MSA. Proper medical documentation is critical to ensuring CMS will agree to the amended MSA.

CMS requires an affirmative statement from a treating physician or physicians confirming that the originally allocated treatment or medication has changed or is no longer necessary. The following case study illustrates how it works.

Amended review case study

CMS approved an MSA on May 7, 2015, for $147,483. The parties were unable to settle the workers’ compensation case at that time. Nearly four years later, the parties were again ready to consider settlement, but the 2015 MSA no longer reflected the injured worker’s course of medical care.

A review of recent medical records caused Tower to suspect that a supplemental oxygen delivery system was no longer used and that the injured worker could switch from brand-name Crestor to generic.

Tower’s physician follow-up service obtained the treating physician’s signed statement regarding the discontinuation of the oxygen system and the injured worker’s current use of the generic, which enabled us to revise the MSA down, to $46,171. It was submitted shortly before the amended review deadline and approved by CMS on May 13, 2019, for a $101,312 reduction from the previously approved MSA.

Key takeaways

CMS will agree to a change in the previously approved MSA amount when the medical documentation supports the change. Since the amended review is a one-time opportunity, it is vital to conduct it well before the deadline and to obtain proper medical documentation to support MSA modifications.

Finally, keep in mind that while the amended review policy allows for an MSA that better reflects the current and future course of care, CMS does not require the settling parties to submit a new MSA, even when the criteria are met. Per our understanding of CMS workers’s compensation medical set-aside rules, the original approved MSA does not expire or otherwise become invalid.

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