New Opportunities for Amended Review of Medicare Set-Asides

June 2023

Amber M. Parris

On May 15, 2023, the Centers for Medicare & Medicaid Services ("CMS") released Version 3.9 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The updated Reference Guide debuts big changes that seem to further the goal of CMS to incentivize the use of their voluntary review and approval process for Medicare Set-Asides.

Most significantly, CMS removed the upper limit for submitting a request for Amended Review of a Medicare Set-Aside. Previously CMS allowed a one-time only request for Amended Review when it had issued a determination on a Medicare Set-Aside Proposal at least 12 months but no more than 72 months prior to submission of the request for Amended Review. In the revised Reference Guide, CMS has removed the 72-month cap. So, there is no longer a date at which a CMS determination becomes “too old” to submit a request for Amended Review.

The other parameters for submitting a request for Amended Review to CMS still remain: 1) future medicals must not have settled as of the date of the Amended Review request, and 2) projected care must have changed by $10,000.00 or 10% of the approved MSA, whichever is greater.

Remember, an Amended Review request is still a one-time option, so it is critical to submit all updated documentation required by CMS along with the Amended Review request. If you have a claim in which medical rights remain open because the MSA approved by CMS was settlement-prohibitive, we would be happy to evaluate current treatment information to determine whether Amended Review may be a good option to reduce the exposure.

CMS also updated the CDC Life Table required to calculate a petitioner’s life expectancy in a Medicare Set-Aside. National Vital Statistics Reports, Volume 71, Number 1, August 8, 2022, is now being used. Though the life expectancy changes are minor in the new Life Table, an increase or decrease of a single year to the life expectancy can sometimes trigger significant changes to the Medicare Set-Aside.

Medicare also clarified the calculation method for determining the frequency of replacements for Intrathecal Pumps and Spinal Cord Stimulators. A section on pricing and replacement calculations for Peripheral Nerve Stimulators was also included in the new Reference Guide.

Finally, the updated Reference Guide clarified that the role of the CMS Regional Offices is being further limited. The Regional Offices will no longer be providing initial determinations on Medicare Set-Aside submission. As such, any questions or concerns regarding initial determinations must go through CMS customer service.

The Amended Review changes in conjunction with the revisions made in January and March 2022 regarding the usage of Non-CMS-Approved Products to address future medicals seem to signal an attempt by CMS to encourage parties to avail themselves to the voluntary CMS approval for Medicare Set-Asides, both initially and when settlement of future medical is revisited.

Though CMS clearly prefers their MSA approval process be used, the process remains voluntary. The Medicare Compliance Practice Group of BCM Law is prepared to assist with a customized evaluation of your options to address Medicare’s future interests. Please contact us with any further questions.

This article is for informational purposes only and should not be construed as legal advice. The content is intended to provide general guidance on the subject matter and is not a substitute for legal advice from a licensed attorney in your jurisdiction. No attorney-client relationship is created by your use of this article or the information contained herein.