There Has Been a Change to CMS’s Review of Zero-Dollar Workers’ Compensation Allocations Without Prior Notification
It has recently come to light that there have been procedural changes to the review Centers for Medicare and Medicaid Services’ (CMS) review process for Zero-Dollar Allocation Workers’ Compensation Medicare Set-Aside Arrangement (MSA) amounts, but no one was notified about the changes in advance. Vendors and claimants were confused by the sudden change in CMS procedure when Zero-Dollar Allocation MSAs claims that formerly were accepted suddenly were being denied.
CMS’s review of Zero-Dollar Allocation MSAs previously allowed for controverted claims to be considered if it included items such as the following:
- Confirmation the claim was controverted, such as filing of a WC-3 in Georgia;
- Confirmation that no medicals or indemnity was paid on the claim;
- Supported by letters from attorneys or adjusters.
The recent procedural changes imposed by the CMS’ Workers’ Compensation Review Contractor called for denial of these controverted claims unless the claim was accompanied by:
- A court order showing a denied claim, or
- Medical records indicating that there would be no more medical treatment related to the work injury that the claim was based upon.
As a result, CMS has announced that as of October 31, 2016, CMS’ Workers’ Compensation Review Contractor will be returning to the former review procedure and that no changes will be made to the Zero-Dollar Allocation MSA review process until notice is properly published so that everyone affected by the change will be officially and formally put on notice. CMS’ Workers’ Compensation Review Contractor had changed how it was reviewing these types of claims without prior notification to those who would be affected by the procedural change.
There Is Potential That Changes Are On The Way
While CMS did not expressly indicate that there were plans to change the Zero-Dollar Allocation MSA review process in the future, in light of all the confusion recently, it begs the question that claimants should be reading between the lines. It is quite possible that the changes implemented without public notice are changes that CMS will implement in the future, making approval even more difficult to obtain.
Suggestions Going Forward
Anyone who has a Zero-Dollar Allocation MSA claim submitted to CMS, or plans to submit one in the near future, needs to be mindful that this glitch in the system could affect their claim. Despite CMS’s announcement to return to the old way of reviewing Zero-Dollar Allocation MSA claims, going forward, individuals who have a Zero-Dollar Allocation MSA claim might consider taking precautions when submitting their claim by:
- Providing copies of treatment records from the treating physician in order to demonstrate to CMS that no further treatment for the worker’s injury or illness will be required in the future;
- If there is no treating physician based on a controverted claim, a possible opinion from an IME physician to medically support that no treatment is related to the alleged work injury;
- Obtaining a judicial ruling/court order once a hearing on the merits has been conducted concerning the compensability of the claim;
- Instead of submitting a claim to CMS, choosing to finalize a strict compromise settlement in accordance with CMS guidance.
Providing these extra materials is in alignment with how the Workers’ Compensation Review Contractor was processing claims.
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