The CMS Reference Guide provides the rules, but it’s the hidden gems within CMS determinations that provide valuable insight into how these rules are interpreted. For instance, most practitioners understand that CMS will not permit the addition of a new date of injury (DOI) during the Amended Review process. Consequently, many have assumed that CMS will take a similarly restrictive approach to adding new body parts or conditions post-CMS decision.
Additionally, since the inception of last year’s policy change that halted review of zero-dollar WCMSA proposals, the general belief is that no zero-dollar decisions will be furnished. Two specific determinations received just last month, however, would indicate otherwise.
Claim 1: An initial CMS approval from October 2024 included three accepted diagnoses. After the CMS-approved WCMSA was received, an additional condition was exposed as being related to the same DOI and later was deemed as accepted by the carrier. As such, an amended WCMSA was projected in May 2026 to include an additional condition, totaling four accepted diagnoses, and then submitted to CMS for Amended Review due to this new information. Subsequently, CMS approved the amended allocation, incorporated the added accepted condition into the determination, and even confirmed the addition within its rationale portion of the decision letter.
This decision confirms that while CMS continues to prohibit the addition of an entirely new DOI, the agency is willing to incorporate additional accepted conditions as part of an amended determination. Understanding this distinction is essential to recognize why CMS differentiates between expanding the claim to include new DOIs verses updating the allocation to reflect additional conditions arising from the same compensable DOI.
Claim 2: In November 2025, a WCMSA was projected for an accepted industrial left shoulder injury. The proposed MSA was submitted for CMS review and approval in April 2026, to which CMS returned a counter higher that incorporated a total shoulder arthroplasty. After issuance of the counter higher, the carrier obtained an order in May 2026 from the state’s Workers’ Compensation Commission (WCC) finding that the left shoulder surgery as well as any further medical care was not industrially related. The order was then submitted to CMS in the form of a Reconsideration for an unfunded WCMSA. Later that same month, CMS returned a revised approval letter in the amount of $0.00.
At first glance, this outcome appears inconsistent with CMS’s current policy prohibiting the review of zero-dollar WCMSA proposals. However, a closer look suggests that the policy may be narrower than initially assumed. While CMS no longer accepts initial submissions requesting approval of a zero-dollar allocation, this case demonstrates that the agency remains willing to approve a zero-dollar WCMSA through the Reconsideration process when presented with compelling evidence. Here, the WCC order materially changed compensability.
Of note, these CMS decisions are the result of specific determinations and do not reflect published policy changes.
Claim 1: This decision is consistent with the overarching purpose of the Medicare Secondary Payer Act and aligns with CMS’ objective of protecting the Medicare Trust Fund. Expanding the allocation to include added conditions increases the likelihood that future Medicare-covered treatment related to the workers’ compensation claim is appropriately funded through the WCMSA, rather than shifting that burden to Medicare. Thus, from CMS’ perspective, permitting that addition strengthens overall compliance.
Claim 2: Rather than contradicting its policy, this outcome illustrates that a valid Reconsideration remains an avenue to lean into CMS’ written guidance for when a zero-dollar allocation may be appropriate, specifically regarding a judicial determination. Ultimately, understanding when and how CMS applies its policies is just as important as knowing what those policies say on paper.
With MSP compliance, the why is often more valuable than the what. CMS guidance is not always explicit, so being able to infer policy direction from agency behavior is vital. While these examples are the result of specific determinations and not published policy change, they shine a light on a broader application of CMS guidance than we historically assumed.
The lesson here is that while CMS guidance tells us what the agency expects, individual determinations reveal how CMS applies that guidance in practice. These decisions serve as a reminder that recognizing both is essential when evaluating what is feasible and/or appropriate prior to settling claims.
Our expert team at ExamWorks Compliance Solutions continues to closely monitor CMS trends and is here to support you in achieving your MSP compliance obligations while also attaining the best claims outcomes. Should you have any questions, feel free to contact your regional compliance consultant, national account manager, or Senior MSP Compliance Counsel, Neha Pellegrino at neha.pellegrino@examworkscompliance.com.