CMS Policy for Reviewing MSAs
On May 11th, 2011, the Centers for Medicare & Medicaid Services’ (CMS) sent shockwaves throughout the industry by releasing its latest policy memo. However, a review of the memo tempered those shockwaves. The memo was nothing more than a combination and reiteration of prior CMS policy memos. It is, however, the most clear and unambiguous statement regarding the review of MSAs that CMS has put out to date.
By way of summary, MSA submissions are and have always been a recommended process. With this memo, CMS reiterated: “There are no statutory or regulatory provisions requiring that a WCMSA proposal be submitted to CMS for review.” Furthermore, CMS clarified that they will no longer review new WCMSA proposals if the review thresholds are not met. This appears to be in response to a high percentage of MSAs received by CMS not meeting the published review thresholds.
So, let’s take a moment with this memo to highlight some key reminders:
1. Follow CMS’s published guidelines for MSA submissions for both Medicare beneficiaries and individuals with a “reasonable expectation of Medicare enrollment within 30 months.” Those thresholds allow CMS to review settlements in excess of $25,000 for Medicare beneficiaries and $250,000 for “reasonable expectation” cases for workers’ compensation claims.
2. If future medical treatment is being left open, do not submit an MSA for review. There is no need to do so because the workers’ compensation carrier will remain the primary payer pursuant to state WC law
3. CMS will not review MSAs if the review thresholds are not met. Save time and money and don’t submit something that will not be reviewed and only cause further backlog.
4. All workers compensation settlements must “consider Medicare’s interest.” The concept of “considering Medicare’s interest” has always been the cornerstone of Medicare compliance and on any given claim could involve any combination of past (conditional payments), present (Section 111 reporting), and future medical treatment. It is imperative that organizations have protocols and best practices in place to ensure compliance, maximize savings, and avoid future exposure on all claims impacted by the Medicare Secondary Payer statute.
If you would like assistance with this, please let us know and we would be more than happy to review and assist in the development of best practices and procedures for your organization.
Louis Porrazzo is Crowe Paradis’ National Account Executive. In his capacity, he assists carriers, TPAs and self-insureds in developing comprehensive MSP compliance solutions. Lou is a graduate of Stonehill College and Suffolk University Law School, and is a member of the Massachusetts bar.