The Medicare Set Aside Re-Review and Amended Review

The Centers for Medicare & Medicaid Services (CMS) issued its new reference guide (Version 3.5) back in January 2022. According to Section 16 CMS can re-review a proposed MSA (Section 16.1) and/or conduct an amended review (Section 16.2). Read on and contact our team to learn more.

When are you entitled to a Re-review or Amended Review?

According to Section 16.1, when (CMS) does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is still no formal appeals process available to the parties. However, there are a couple of other options available. The submitter or the claimant may provide the Workers Compensation Review Contractor with additional explanations, arguments, or documentation in order to justify the original proposed amount. This option is called a request for re-review.

A request for re-review may be submitted based on a mathematical error. In other words, where the appropriately authorized submitter or claimant disagrees with CMS’ decision because CMS’ determination contains obvious mistakes like a mathematical error or failure to recognize medical records already submitted, the parties may request a re-review. However, do note that if the recommended MSA amount calculated by the Workers’ Compensation Review Contractor (WCRC) is within 5% of the amount submitted to CMS, then the WCRC’s recommendation constitutes an approval of the submitter’s proposed amount.

A request for re-review may also be submitted based on missing documentation. Where the submitter or claimant disagrees with CMS’ decision because the submitter has additional evidence, not previously considered by CMS, which is dated prior to the submission date of the original proposal and which warrants a change in CMS’ determination, the parties may submit a request for re-review.

A request for re-review may not be submitted based on a disagreement surrounding the inclusion or exclusion of specific treatments or medications. Re-review requests based upon a failure to properly review already submitted records must include the specific documentation referenced as a basis for the request.

However, it is important to note that if the additional information does not convince CMS to change the originally submitted amount and the parties proceed to settle the case despite the lack of change, then Medicare will not recognize the settlement. Medicare will exclude its payments for the medical expenses related to the injury or illness until WC settlement funds expended for services otherwise reimbursable by Medicare use up the entire settlement. Thereafter, when Medicare denies a particular beneficiary’s claim, the beneficiary may appeal that particular claim denial through Medicare’s regular administrative appeals process. Information on applicable appeal rights is provided at the time of each claim denial as part of the explanation of benefits.

How is an Amended Review different from a Re-review?

Section 16.2 CMS permits an Amended Review, which is a one-time request for re-review in the form of a submission of a new cover letter, all medical documentation related to the settling injury(s)/body part(s) since the previous submission date, the most recent six months of pharmacy records, a consent to release information, and a summary of expected future care.

The amended review is particularly useful in cases where the matter has not been settled, and a prior MSA decision was holding up the settlement. In order to take advantage of this option, the following must exist: (a) CMS must have issued its conditional approval/approved amount at least 12 but no more than 72 months prior to the latest attempt for amended review; (b) the case has not yet settled as of the date of the request for re-review; and (c) the projected care has changed so that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) from CMS’ previously approved amount.

In order to justify that the projected care would result in a 10% or $10,000 change (whichever is greater), the submitter must return CMS’ Recommendation Sheet that was included in CMS’ conditional approval letter and identify the following: (a) line items that were included in the approved amount, but are for care that has already been provided to the beneficiary and you must identify where references to records indicating that the care has already been provided can be found in the updated proposal; (b) line items for care that is no longer required and identify where references to replacement treatment can be found in the updated proposal; and (c) if additional care is required that was not otherwise included in CMS’ conditional approved amount, and add line items.

Because CMS will deny a request for amended review if submitters fail to provide the appropriate justification, you should include a detailed explanation of the history of the case, an explanation of where the case was at when the original allocation was submitted to CMS, the changes in recommended care and prescribed medications since the originally approved allocation, and where the case was at the time of this latest submission for amended review.

Specifically, the submitter must provide the rationale for the amended review request; all medical documentation related to injury since the date of CMS determination; the most recent six months of pharmacy records; a consent to release signed by the claimant; a summary of expected future care, basically a new proposed MSA; and the CMS recommendation sheet that was included in the original determination.

CMS does note in Section 16 that in the event that treatment has changed due to a state-specific requirement, a life-care plan showing replacement treatment for denied treatments will be required if medical records do not indicate a change and they admonish those requests for changes to treatment plans will not be accepted without supporting medical documentation. CMS also notes that the approval of a new generic version of a medication by the Food and Drug Administration does not constitute a reason to request an amended review for changes in projected pricing.

Contact MSA Meds

Both the re-review and the amended review are complicated and MSA Meds will work with your doctor and attorney to maximize your settlement and to get sufficient funds for your Medicare Set-Aside Account so as to ensure you get proper medical care while protecting your future Medicare eligibility. Contact MSA Meds today.