Noticing an uptick in the time it takes to get the Centers for Medicare and Medicaid Services (CMS) to approve that Workers’ Compensation Medicare Set-Aside (WCMSA) you submitted to its voluntary review process? Seeing an increase in the amount of “Development” letters issued on the cases you submit? Wondering why? You’re not alone. The industry is indeed seeing a bit of a slowdown in the time it takes for the Workers’ Compensation Review Contractor (WCRC) to review and approve WCMSAs submitted through the voluntary review process. The good news is we have seen this happen before and the likely culprit is the fact that the WCRC contract is currently out for bid. The bad news is that it may take a few months to sort out.
Tell Me More
The WCRC reviews WCMSAs submitted for review and approval. It plays an important role in either facilitating or delaying workers’ compensation settlements involving Medicare beneficiaries or those with a reasonable expectation of becoming Medicare eligible within 30 months from the date of settlement. Capitol Bridge, LLC holds the current WCRC contract and thus reviews the submitted allocation reports, corresponding medical records and payment histories, applies often nebulous guidance from CMS, and works directly with submitters to address questions as they arise.
Swift and relatively reasonable reviews may be taken for granted by practitioners, but just shy of a decade ago, under a different prior contractor, the wait times were far longer and the reviews were far less reasonable. The most recent two contractors, including Capitol Bridge have generally done admirable jobs in reducing review times, increasing transparency, and improving service. Simply put, the most recent two contractors have proved to be a tremendous upgrade over the prior contractors.
What Happens Next?
While we do not yet know who will win the WCRC contract nor do we know the full details of the contract just yet, we do know the 2017 contract was for more than $60 million and that the request for proposal published by CMS outlined that the winning bidder back then needed to be capable of reviewing Liability Medicare Set-Asides (LMSAs). CMS still has yet to announce any policy initiatives surrounding LMSAs and part of that we suspect has to do with the fact that this WCRC contract is out for bid. A key part of introducing a proposed rule around LMSAs (and No-Fault MSAs along with tweaks to the WCMSA process) is having buy-in from the contractor who would be tasked with implementing the LMSA and NFMSA review process.
What Does This Mean for MSA Submissions and Approvals?
At the end of the day, the WCRC plays an incredibly important role in facilitating prompt review of MSAs and settlements. MSA review is not mandatory, but depending upon the circumstances of each case and the risk management goals of claims payers, attorneys, and workers’ compensation judges, it is often a necessary evil. What we have seen in the past when contract uncertainty looms large is that overall review slows down and there is an uptick in “Development” letters. And that’s where we find ourselves now. As we’ve said before (when the last contract award was contested in 2017), Federal contracting is an often byzantine process with many fits, starts, twists, and turns. Prepare for a delays in the WCMSA submission process for the next few months.
Alternatives Remain Available
As we covered extensively in the first quarter, in January CMS updated its WCMSA Reference Guide to add a new Section 4.3, addressing the use of “non-CMS-approved products,” including Evidence-Based Medicare Set-Asides. In March CMS re-stated long-standing CMS policy that settling parties can avoid adverse enforcement simply need to demonstrate that “both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate.” For our part, ECS has long championed creative and innovative approaches that not only consider and protect Medicare’s interests post-settlement, but also allow the parties to pursue clinically-appropriate future medical allocation methodologies without the need for a full submission. Our Evidence Based MSA program remains a foundational element of our Medicare compliance offering, and a critical option when CMS determinations may be needlessly delayed.
What’s Next?
ECS closely monitors CMS turnaround times and will watch for any changes and, should you have any questions about this situation, or if you want to learn more our Evidence Based MSA services that protect all parties and Medicare without the need for a formal submission, contact your local or national account manager or Annie M. Davidson at annie.davidson@examworkscompliance.com or 651-262-9618.
