Earlier this week CMS released an updated version of its WCMSA Reference Guide. Version 2.9 provides no major substantive policy announcement but it does clarify some key issues that we have been closely following for a number of months. The updates concern two primary areas: policy and technical updates and injury and treatment-specific clarification.
These are the critical insights workers’ compensation claims practitioners need to know:
Policy and Technical Guidance: A Few Firsts
The reference guide, for the first time, provided specific examples of how parties should treat situations where a settlement does not meet the current review thresholds of $25,000 for Medicare beneficiaries and $250,000 for individuals with a reasonable expectation of Medicare enrollment within 30 months. Specifically, CMS explained that even in cases not meeting CMS’ review thresholds “not establishing some plan for future care places settling parties at risk for recovery from care related to the WC injury up to the full value of the settlement.”
For the last fifteen years, CMS’ policy has expressed consistently an admonition that parties must “consider and protect Medicare’s interest” in all cases, regardless of a threshold. At last, CMS has provided examples of specific consequences that it may seek to impose upon parties who fail to “establish some plan for future care” even where review thresholds are not met. It’s a good reminder that a Medicare Set Aside or some other form of “future medical care plan” should be considered whenever a full and final settlement is reached with an individual who is either a Medicare beneficiary or has a “reasonable expectation” of Medicare enrollment within thirty months.
In more minor technical matters, CMS announced updated templates to provide generic communication regarding the Workers’ Compensation Review Contractor (WCRC) and the WCRC customer service number. This change eliminates individual Regional Office (RO) reviewer names and direct phone numbers. The updated reference guide also confirms the use of the new CDC Life Table #1 to set life expectancies for Medicare Set-Asides, which went into use effective January 5, 2019.
Injury and Treatment-Specific Guidance
The WCMSA supplements prior guidance around the treatment of spinal cord stimulators and the use of off-label medications, with specific information relating to Lyrica and Tramadol.
The most important guidance concerns off-label medication. In our comprehensive year-end webinar on December 19, 2018, CMS included specific examples of “off-label” drugs that would still be appropriate for a Medicare Set-Aside. Medicare’s longstanding policy is that all drugs – whether prescribed in accordance with FDA-approved guidance or outside of those guidelines (and therefore, “off-label”) – will be included in a Medicare Set Aside if they are approved for a “medically accepted indication.” A medically accepted indication is further defined in the guide as “any use for a covered outpatient drug which is approved by the FDA, or a use which is support by one or more citations include or approved for inclusion in the recognized compendia.”
Since late summer 2018, CMS’ review contractor has rejected arguments that Lyrica is prescribed for “off-label” and not “medically accepted” conditions when it is prescribed beyond its relatively narrow FDA-approved purposes. The updated reference guide notes that Lyrica shows significant positive outcomes for the treatment of radicular pain and opines that spinal cord neuropathy includes injuries directly to the spinal cords or it supporting structure causing nerve impingement that result on neuropathic pain (central nerve pain). In such conditions, CMS considers Lyrica an acceptable treatment that should be included within a Medicare Set Aside. CMS’ updated guidance draws the line on Lyrica. CMS added an additional example with regard to Trazodone. While practitioners would always prefer to have this information prior to submitting a case to CMS, we appreciate the relatively transparent policy set by CMS.
With regard to spinal cord stimulators, the updated reference guide builds on prior guidance issued in a July 2017 ECS update. This update provides additional detail regarding Medicare’s suggested methodologies for calculating future medical charges related to intrathecal pain pumps. ECS anticipates little substantive change regarding prices attributable to pain pumps. Nevertheless, ECS is pleased with CMS’ ongoing efforts to provide greater transparency and insights into the CMS review methodology.
The updated reference guide represents the most substantive changes to the WCMSA Reference Guide since July 2017. We appreciate CMS’ continued efforts to provide further transparency and guidance on this important topic. ExamWorks Compliance Solutions will continue to monitor the updates to the MSPRP and will provide further information as warranted. For questions related to updates related to CMS’ treatment of off-label medications and intrathecal pain pumps, please contact Lori Dickson, Director of Clinical Operations at firstname.lastname@example.org. For any other questions related to these important updates, please contact Marty Cassavoy at email@example.com.