By Daniel M. Anders, Esq., MSCC, CMSP, Chief Compliance Officer, Tower MSA Partners
In a recent announcement, the Centers for Medicare and Medicaid Services (CMS) opened the door for a new MSA review no matter how long ago the prior CMS MSA approval occurred. And, CMS has been formally approving MSAs for more than 20 years! This presents an excellent opportunity to take a second look at some old dog unsettled cases with high MSA amounts that do not reflect the current course of care.
In 2017 CMS rolled out a policy that enabled the submission of a new MSA even if the agency had previously approved an MSA for the same date of injury. This “Amended Review” aims 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 enabled many parties in workers’ compensation cases to move forward with settlement and closure of medicals.
The Amended Review process was previously limited to MSAs approved within the last 12 to 60 months. This, of course, reduced the effectiveness of this policy as there are MSAs going back over the two decades of the formal CMS MSA review program. Even if the medical care has not changed, just the reduction in life expectancy since the prior MSA could lead to a significant decrease in the allocation.
The 60-month limitation is now gone, opening the door to a second bite at the apple for any previously approved MSA following a 12-month period after the original approval.
Does your MSA qualify?
CMS provides the following 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 injury(s)/body part(s) 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 months prior.
- The case has not yet been 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.
As noted above, there remain some limitations. First, you must wait 12 months after the original MSA was approved to submit an Amended Review. In other words, say the MSA is approved, and before settlement, a surgery allocated in the MSA is completed. You must wait 12 months post approval to submit an Amended Review MSA that removes those surgery charges.
It is also important to stress that the Amended Review MSA is only available in cases that have not settled. The rule remains that the MSA-approved amount cannot be modified once the case is settled with the MSA funded.
Further, the Amended Review MSA amount must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount. For example, if the previously approved MSA amount was $50,000, and the new MSA is $45,000, it would not qualify for an Amended Review because while this is a 10% change, it is not a $10,000 change.
Finally, as noted, this is a one-time request. No further reviews will be allowed once an Amended Review MSA is submitted.
Supportive Documentation Required
As there is only one chance to get this right, the documentation submitted with the Amended Review MSA must support the removal of previously allocated care. In this respect, the Amended Review MSA differs from an original MSA submission.
In an original MSA submission, if specific treatment or medications are not mentioned in the last two years of medical records, that is usually enough to keep those costs out of the MSA. With an Amended Review MSA, that is not enough. There must be medical documentation that confirms that the previously allocated medical care is no longer part of the treatment plan.
For example, the Amended Review MSA must provide proof that a surgery has been completed or that the doctor states injections are no longer part of the treatment plan. In other words, you cannot simply submit the past two years of medical records and say that injections or surgery should be removed because it was not mentioned in those records. Instead, a statement must be obtained from the treating physician who confirms which treatments and medications are no longer part of the treatment plan and which are.
Amended Review MSA is Voluntary
Like an original MSA submission, an Amended Review is voluntary. This means that if an Amended Review MSA would result in a higher MSA amount than the previously approved MSA, the best course of action may be to fund the MSA as previously approved. While this may seem counter-intuitive, it is allowed under current CMS guidelines as there is no expiration date on CMS-approved MSAs, no matter how much medical care may have changed.
Amended Review Case Study
CMS approved an MSA in May 2018 for $147,483. The parties could not settle the workers’ compensation case at that time. Nearly four years later, the parties were again ready to consider settlement, but the 2018 MSA no longer reflected the injured worker’s course of medical care.
A review of recent medical records revealed that a supplemental oxygen delivery system was no longer used and that the injured worker could switch from brand-name Crestor to generic. The treating physician provided a statement regarding the discontinuation of the oxygen system and the injured worker’s current use of the generic. This reduced the MSA allocation to $46,171. It was submitted shortly before the Amended Review deadline and approved by CMS in May 2022 for a $101,312 reduction from the previously approved MSA.
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, conducting the review well before the deadline and obtaining proper medical documentation to support MSA modifications are vital.
Finally, remember that while the CMS 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 WCMSA rules, the original approved MSA does not expire or become invalid.
It would be best to work closely with your MSA provider to determine whether a particular claim meets the Amended Review criteria and obtain the supporting documentation for a successful Amended Review MSA submission.
About Dan Anders
Daniel M. Anders, Esq., MSCC, CMSP, is an expert in Medicare Secondary Payer (MSP) compliance and Medicare Set-Aside (MSA) preparation. As Chief Compliance Officer for Tower MSA Partners, Anders oversees all aspects of regulatory compliance associated with the MSP statutes and local, state, and federal laws. His responsibilities include ensuring the integrity and quality of Tower’s services and products, including its MSA program.
With 20 years of experience working with employers, insurers, third-party administrators, attorneys and claimants, Anders consults with Tower’s clients on all aspects of MSP compliance. A respected subject matter expert, Anders regularly contributes to Tower’s MSP Compliance Blog.
Anders is a past president of the National Medicare Secondary Payer Network (MSPN) and current board member.
About Tower
Tower MSA Partners provides Medicare Secondary Payer (MSP) services and Medicare Set-Asides (MSAs) with settlements in mind. Services include Section 111 Reporting, Conditional Payment Resolution, pre-MSA Triage, clinical and legal interventions, Physician Follow-up, and second opinions on MSAs. Based in Delray Beach, Florida Tower provides services nationally and successfully completes annual SOC 2 Type II audits. For more information, call 888-331-4941 or visit www.towermsa.com or https://towermsa.com/blog/.