How To Make Sense of the CMS WCMSA Webinar
by B. Smith
As promised, CMS hosted a WCMSA webinar on February 17, 2022. Although acknowledging that Section 4.3 of the Guide was the most pressing issue webinar participants wanted to discuss, CMS did not address this subject until the last 10 to 15 minutes of the hour-long call. Most of the webinar was focused on questions that were previously posed to CMS regarding the disconnect between what is happening on the claim and the CMS allocation. Below are key takeaways and our analysis of this webinar.
Section 4.3: Not a “New Policy”
CMS reiterated many times during the presentation that the language in Section 4.3 is “nothing new,” but represents a policy that CMS has been following for years. Despite this acknowledgment, a plain reading of Section 4.3, along with letters beneficiaries are receiving, includes language that can be and has been construed by many to suggest that CMS will automatically require the Medicare beneficiary to exhaust the full amount of the settlement if they use a non-submit or evidence based MSA.
CMS confirmed that they treat all MSAs, submitted or non-submitted, the same. CMS also stated that they have, and always have had, the right to review whether an MSA was properly exhausted and / or whether the MSA reasonably considered Medicare’s interest. According to CMS, the language utilized in its recent letters was simply to put beneficiaries on notice of this right: that CMS can review the reasonableness of any MSA. CMS agreed that just because an MSA is not submitted to CMS does not automatically mean that it represents an attempt to shift the burden to CMS to pay for injury-related Medicare-covered expenditures. CMS stated that claims for Medicare beneficiaries have been denied in those cases that have a CMS approved WCMSA.
CMS noted that all MSAs get flagged in the system to make sure that payment is not made for injury-related medical expenses when there is a fund available; attestation statements are reviewed by the BCRC to determine if there is a gross misuse of funds, and the flag is not removed until it is determined that the WCMSA has been properly exhausted. CMS also noted that if an attestation statement is received from a professional administrator showing that the funds were exhausted, the flag is automatically removed.
CMS noted that its structures are not “followed” for non-submit MSAs, which are instead treated as a lump sum settlement. CMS also noted that neither Ongoing Responsibility for Medical (ORM) or Total Payment Obligation to Claimant (TPOC) data provided by primary payers are reviewed to determine the need for future medical allocations.
CMS Allocation Methodology: Anything Is Possible
Several questions were posed regarding future care, including how CMS will allocate if a claimant has not treated with a medical provider for several years. CMS noted that they essentially look at the “worst-case scenario” in these situations and allocate as if the claimant may treat again sometime in the future. CMS also noted that, as a general rule, if a WCMSA is needed the claimant will likely require some ongoing care. Even if a provider releases a claimant, ongoing care could still be required.
A separate question involved those jurisdictions where a court order and hearing on the merits is not required if a claimant does not contest a denial of a condition. CMS acknowledged that it does accept legal denials, but legal denials must be accompanied by convincing evidence to support the denial. This includes a decision based upon the merits of the case by a court of competent jurisdiction.
IMRs were also discussed by CMS. CMS noted that IMRs are treated the same as utilization reviews and the parties will need to show either an alternative treatment plan or a decision on the merits accepting the findings of the IMR to impact a WCMSA.
Although acknowledging that non-submit MSAs do not automatically represent a burden shift to CMS for injury-related medical expenses, CMS confirmed that all MSAs maybe reviewed for reasonableness. While this acknowledgement appears to simply reiterate longstanding policy, the language CMS utilized in Section 4.3 did not provide this same clarification and, in fact, served only to needlessly muddy the waters.
What Section 4.3 and this webinar did illustrate is that there is a need for clear directives and actions from CMS that are consistent with the Medicare Secondary Payer Act, accompanying Code of Federal Regulations and state Workers’ Compensation laws. It also highlighted the need for an evidence-based approach to MSAs. A “probable” rather than “possible” approach to future allocations will benefit all parties to a settlement as well as reasonably protecting the interests of Medicare.
NuQuest will be hosting a webinar to discuss these topics more thoroughly and will provide more information regarding the same. In the interim, we continue to offer WCMSAs for submission and our NuShield Certified MSA. If you would like more information regarding this posting, or for any of your Medicare compliance needs, please contact the NuQuest Settlement Consultant Team at [email protected].