While the wording of Section 4.3 does not prohibit or ban the use of non-submit or evidenced based allocations, it appears that CMS is aggressively placing the industry on notice by stating that “as a matter of policy and practice” a claimant will need to show that the entire settlement is exhausted, minus procurement costs, before CMS will pay for claim related treatment if the settlement does not include a CMS-approved WCMSA.
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Further, and significantly, CMS seems to be indicating that that they will deny medical services to the full amount of the settlement, minus procurement costs, if these arrangements are used. Assessing the updatesįrom a practical claim standpoint, CMS’s updates are significant in the sense that CMS has for the first time seemingly taken a position on the use of EBMSAs/Non-Submit practices, and as noted above, has indicated that from its view these allocations may “potentially” be viewed as an improper shift of the claimant’s future medical treatment to Medicare in contravention of 42 C.F.R. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.Īs a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. The authors provide the following overview of these new updates and potential claims impact as follows: Overview of CMS’s new updatesĬMS added a new section, Section 4.3, to its WCMSA Reference entitled “The Use of Non-CMS-Approved Products to Address Future Medical Care.”Ī number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Overall, these new changes may cause insurers to re-evaluate their use of EBMSAs/Non-Submit allocations going forward. Regarding these allocations, CMS notes that they view these arrangements as “a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.” In addition, CMS states that they will deny medical services to the full amount of the settlement, minus procurement costs, if these arrangements are used. Significantly, as discussed more fully below, the new Reference Guide focuses on EBMSAs/Non-Submit allocations. For a variety of reasons, interest and use of these arrangements have grown over the past several years. In general, these allocations are WCMSA medical allocations have not been reviewed or approved as part of the agency’s voluntary WCMSA submission process. The Centers for Medicare and Medicaid Services (CMS) has released an updated Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.5, January 10, 2022).ĬMS describes its updates in Chapter 1.1 of the new WCMSA Reference Guide as follows: “Clarification has been provided regarding the use of non-CMS-approved products to address future medical care (“Section 4.3”).”Īs part of these updates, CMS added a new section to the Reference Guide relating to what is commonly referred to as “WCMSA non-submits” or “evidenced-based” MSA (“EBMSA/Non-Submit”) allocations.
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ISO Electronic Numerical Listings of Classification Codes.
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