CMS Proposes Expansion of Re-Review Process for Medicare Set-Asides

CMS has proposed a rule to expand its current, limited appeal ("re-review") of Medicare Set-aside determinations. Until now, CMS has only allowed an appeal of its determination when the submitter omitted documentation from the original proposal or when a mathematical error was made by Medicare’s review contractor.  The notice concerning the proposed rule can be found at:


http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Workers-Compensation-Medicare-Set-Aside-Arrangements/Downloads/WCMSA-Re-review-Expansion.pdf.

Under CMS's proposed expansion of re-review, a new reviewer at Worker's Compensation Review Center will consider a re-review for the same reasons as they now allow (mathematical error or accidentally omitted documentation). They also plan to consider re-review requests for additional, specifically enumerated reasons: when the submitter disagrees with how the medical records were interpreted, when medical records dated prior to the submission date were mistakenly omitted, when items or services priced in the approved set-aside amount are no longer needed or there is a change in the beneficiary’s treatment plan, when a recommended drug should not be used because it may be harmful to the beneficiary, to dispute of items priced for an unrelated body part, or to dispute of the rated age used to calculate life expectancy. To consider this latter list of reasons, the re-review request must be submitted within 180 days of the original determination, the case can not have settled, no prior re-review request can have been submitted for the WCMSA, and the re-review must request a change to the approved amount of 10% or $10,000 (whichever is more).

Even the notice suggests there may be additional grounds to request a re-review, however. CMS suggests that a request can be "elevated" to the CMS Regional Office when the argument for re-review was a failure in the original determination to adhere to court findings, when there is a dispute as to CMS policy, when the carrier maintains Ongoing Responsibility for Medicals for treatment that has been included in approved WCMSA, and other related reasons.

Any comments or concerns can be sent to WCMSARereview@cms.hhs.gov by March 31, 2014. Carr Allison will be preparing our own response to this proposed process and will keep you apprised of forthcoming developments.