Everyone updates, including the Centers for Medicare and Medicaid Services (CMS). In October, the CMS released its updated Medicare Set Aside (MSA) reference guide, version 3.0, which replaces version 2.9 released just in January of this year. As participants in the MSA system make changes to reflect the new guidelines, they should be careful to note and follow the new standards.
Not surprisingly, because the CMS is an immense bureaucratic organization, some of the changes are relatively small and more administrative in nature. These, while interesting, won't affect the processing of MSAs to any great extent. Other changes offer insights into interesting trends that may not have an impact in the near future but suggest more changes may be coming in the next year or so. Still other changes, however, carry critical legal ramifications, so understanding and implementing those new requirements will be necessary to remain in compliance with MSA administration standards.
There are two notable changes to the Guide that will have an impact on every future MSA: the revised "Consent to Release" rules, and the extension of the "Amended Review" opportunity from four to six years.
Date of compliance: April 1, 2020
The new rule requires all MSA applications to attach an updated "Consent to Release" form that includes language indicating that the beneficiary understands the details of the MSA process. It must also reflect their comprehension that their medical and other records will be shared with CMS and its agents (in particular, the WC Review Contractor - WCRC). The critical language will indicate that the injured party understands:
Additionally, at the very least, the claimant's initials should appear on the consent form to establish its validity, but full signatures are the optimal choice.
'Informed consent' is a significant legal principle that ensures that when people give up their rights in exchange for something, they are doing so knowing the full ramifications of the transaction. "Informed" means that the person has been given all the information needed to understand and make decisions about the circumstances at hand.
The premise behind 'informed consent' is that a person can only truly commit to an action when they understand all the potential impacts it may have on their life.
In the MSA sphere, and in the MSA application process in particular, 'informed consent' means four things:
Failure to obtain and submit proof of informed consent often renders moot whatever decisions were made without it. Failure to provide evidence of informed consent by an injured worker in a WC case may result in the setting aside of either or both the negotiations and final 'agreements' of the parties to the 'final' MSA contract.
The CMS includes a template for an appropriate Informed Consent document in the new Guide. Those forms are required in MSA application submissions after April 1, 2020.
The new Guide states that requests to review the details of a submitted MSA application can now be submitted up to 72 months after that initial MSA application was sent in. The previous rule limited such submissions to 48 months after the initial documents were transmitted.
This change is significant because it reflects CMS's awareness that medical conditions, treatment options, and outcomes change and that MSAs can be rendered obsolete or insufficient as a result. While the 24 months between four years and six years may not seem like a significant length of time, in the healthcare field, it could mean the difference between a lifetime of pain or a complete recovery due to advanced interventions. For employers, it could mean the avoidance of significant medical expenditures for workers who, because of new healthcare developments, are able to achieve improved outcomes at less cost.
There are, of course, caveats to the new rule:
The change in care costs must be justified by noting in line items to the proposal:
When approved by CMS, the approved amount becomes effective on the date of settlement of the case. Also, note that substituting generic drugs for non-generic drugs is not a justification for an amended review unless it is included among the justifications listed above.
CMS has provided additional information for electronic filing for those considering how to manage a newly available Request for Re-Review opportunity.
CMS has also enhanced its requirements on individual elements of the MSA process:
The change, however slight, would impact the overall value of an MSA in the event of
the need for lifelong care.
For all participants in the Medicare Set-Aside arena, the updated Guide offers important information for future MSA development and management. These new rules reflect the Agency's awareness and acknowledgment of today's realities:
We can only assume that future updates will be as thoughtful and comprehensive as this one is.