Archive for the ‘ Uncategorized ’ Category

Workers Compensation Review Center (WCRC) Changes Position on Development Letters

As a result of Gould & Lamb’s continued advocacy with CMS Central Office, WCRC, and Regional Offices, Workers’ Compensation Medicare Set Aside submitters will see a light at the end of the tunnel.  Based on direct conversations, we anticipate a turn-around in what has been an arduous approval process with repeated development requests that were neither germane nor reasonable.  The WCRC is starting to address the back log that has accumulated since November 2013, has restated their commitment to abide by state specific statutes, and to refrain from seeking unnecessary, and unrelated medical records as part of its review process.   The WCRC has expressed its commitment to expedite review of the backlog for all affected submitters.

Since the publication of CMS’ WCMSA Reference Guide in November 2013, there has been a marked increase in the number of development requests from the WCRC for medical records purportedly to enable the reviewers to accurately price future Medicare costs over a claimant’s life expectancy.  To submitters and other stakeholders, the WCMSA Reference Guide, originally intended to herald a new era of transparency and accountability, , resulted in the WCRC increasing the issuance of development letters seeking medical records dated within six months of the submission or the reopen date — whichever is was later.

No Federal Preemption

The WCRC justification for its expanded request for medical records and the authority on which it relied is the November 2013 WCMSA Reference Guide and its subsequent update.  The assumptions made by the WCRC were:

  • The MSP preempts the state WC law.
  • Even if the claimant treats outside the WC system and the carrier has no obligation to pay for the treatment Medicare is not primary.
  • Even if the claimant is no longer entitled to medical benefits by operation of law, Medicare is still not the primary payer and the employer/carrier should bear the associated costs.

Moreover, the WCRC has asserted that it is doing “an investigation” and is not limited only to the records for treatment of the WC injury but to the claimant’s family doctor medical records, if there are no current records from the WC provider.  This was a firm position until recently and accounted for countless delays in the determination process.  Through Gould & Lamb’s advocacy, we successfully established that CMS and the WCRC must give deference to state specific statutes because there is no federal preemption.   The MSP is a secondary payer law and where there is not otherwise a primary payer, Medicare is absolutely the primary payer.   We continue to advocate with CMS to adopt clear and unambiguous polices so that there is no confusion on the part of the WCRC –the Agency charged with following CMS policies and reviewing submitters Life Care/Future Treatment Plans.  We urge CMS and the WCRC to adopt policies that comport with the public policy of the MSP and the opinions of various U.S. Federal Courts that Medicare stands in the same shoes of the beneficiary and where the state does not require the carrier to pay, then Medicare has no right of recovery or subrogation under any theory of law.

We are pleased to see that the pace of approvals has picked up dramatically and the number of development requests has abated.   We are committed to continuing to work with the CMS, the WCRC, and the Regional Offices to ensure a fair and transparent review/approval process.

For more information or if you have questions, please contact your Gould & Lamb Regional Claims Consultant at 1.866.MSA.FILE (672.3453).

Mandatory Insurer Reporting in 2013 – Changes Ahead?

John Miano Our industry is now two years into the mandated production (liability – one year) of MMSEA Section 111 Reporting. Although we don’t have crystal balls to see into the future, the matters identified below will likely shape changes to MMSEA Section 111 reporting in 2013.

New CMS Contract Strategy
During the June 2012 NGHP Town Hall teleconference, CMS advised of the new contractor’s strategy to combine the coordination of benefits and recovery operations center to handle front end Section 111 and recovery issues. New tools or improvements related to Section 111 processes would not be available, they said, until CMS implements the new strategy. Until CMS issues a public advisory, it won’t be possible to know when it may be employed.

Transition to ICD-10 Coding
HHS announced the final rule delaying compliance with transition to ICD-10 coding from October 1, 2013 to October 1, 2014. CMS has not provided guidance regarding how the transition from ICD-9 to ICD-10 coding will be addressed for MMSEA Section 111 reporting.

The SMART Act
In December 2012, the House and Senate passed the Saving Medicare and Repaying Taxpayers (SMART) Bill and it was signed into law by President Obama on January 10, 2013. Details regarding SMART can be found in Russell Whittle’s blog here. In brief, MMSEA Section 111 reporting will be affected by changes to the standard for the application of civil penalties and requires the Secretary of HHS to set forth circumstances under which sanctions will not be imposed. The Bill also sets forth a statute of limitations indicating that the United States may not bring an action regarding payment owed unless a complaint is filed not later than three years after the date of the receipt of notice of a settlement, judgment, award, or other payment for cases brought on or after the timeframe set out in the legislation. There are many components to this Bill; promulgation and implementation will likely occur over the course of 2013 and beyond.

Mass Tort Claims
Since 2009, CMS has struggled to understand Mass Tort claims and how the industry processes those claims. Attempts had been made to convene a Mass Tort group but to date, guidance regarding timely reporting and compliance has not been forthcoming. Given the current fiscal climate in the United States we may anticipate CMS reprioritizing this matter.
As these or other matters develop which affect MMSEA Section 111 reporting, Gould & Lamb will keep our clients well informed. Should you have questions, please contact your Gould & Lamb Representative or Gould & Lamb MMSEA Compliance Manager.