Last month, we covered the 10,000' view of the system used by the Worker's Compensation Review Contractor (WCRC) to determine the merits of a Medicare Set Aside (MSA) account proposal. Not surprisingly, each separate element of the system also includes a series of smaller systems designed to clarify ever more granular information about the injured party, their injuries, their prognosis, and who will be covering those healthcare costs going forward. MSA professionals who master those more precise details are better prepared to achieve a swift and successful MSA acceptance when submitting their client's proposal.
Three Rules to Remember
When developing an MSA proposal, it's easy to miss critical but tiny details when your focus is on the much larger picture. However, in many instances, it is because of errors, confusion, or lack of the information that should be contained in these details that proposals get rejected or delayed. Delays occur when the WCRC doesn't get the data it needs to conduct a thorough review. Rejections happen when ill-prepared proposals reveal a claimant who is not eligible for Medicare, whose case doesn't meet the threshold, or when the case's legal issues aren't resolved (among many, many other reasons). Both delays and rejections are expensive because they mandate either additional work or waste the work that's been done. They also drag out the case for a longer period of time, incurring additional legal and other fees for associated services.
Here are three rules to remember when crafting an MSA proposal. Professionals who want to achieve the swiftest acceptance of their accurate and appropriate MSA proposal will have paid particular attention to these suggestions.
1) Don't Skip the Prerequisites
It's best practice to ensure that all essential information is accurate and included in every MSA proposal, yet, often, it is these precise details that get missed.
Complete Information about the Claimant
In addition to the basics, the Claimants' name, date of birth, address, and Medicare Identity number (or social security number if not yet Medicare-eligible), the proposal must also include:
- the name and contact information of their counsel,
- their Medicare Entitlement information (whether they're enrolled in Part A and Part B, or just Part A), and
- their signed release that permits access to their records by the WCRC.
Proposals filed on behalf of claimants who are Medicare eligible must include:
- data regarding any Social Security Disability Benefits (SSDB) activity,
- their age (reflecting their eligibility), and
- whether they are diagnosed with End-Stage Renal Disease (ESRD) but don't yet qualify for coverage on that condition.
Complete Information about the Legal Case
Because a workers’ compensation claim is at the heart of most MSA proposals, it is crucial to include:
- the name of the Claimant's employer,
- the name of the Worker's Compensation insurer,
- the name(s) of any attorneys involved, and
- the state in which the injury occurred. (The state's individual Worker's Compensation rules will govern the ultimate disposition of the case.)
Additionally, it is important to list out the details of the proposed settlement costs, including the total proposed settlement amount, which should cover economic values for:
- wage replacement or disability,
- future medical and prescription drug treatment,
- attorney's fees,
- any repayment of conditional payments information,
- payout totals for proposed annuities established to cover future medical payments, and
- the value of any previously settled portion of the WC claim.
Perhaps most importantly, include the total and detailed itemization of the proposed MSA amount, including the presumed costs of both medical care and drug costs. This itemized value is the cost Medicare would avoid paying because the WC insurer is assuming that obligation.
Complete Information about the Substance of the MSA
The proposal should also include clear documentation for each element of the MSA case - those details that are of specific interest to Medicare, including:
- A Patient Medical Recovery Prognosis, which describes the type of recovery anticipated (full or partial), and when the Claimant is expected to achieve 'maximum medical improvement;'
- A Life Expectancy evaluation which includes language explaining whether the injury might shorten the Claimant's life span,
- A detailed LifeCare plan detailing supports for injuries that have caused extensive or egregious damage, such as a brain injury, loss of limb, or paralysis;
- A current care evaluation, which includes the Claimants current treatment protocols;
- A future treatment plan, detailing how the Claimant's situation will be managed after the WC case closes;
- A prescription drug evaluation;
- A proposed amount for future medical treatment, and
- A proposed MSA valuation amount.
Complete Information about the Administration of the MSA
In addition to the factors indicating the case's financial resolution, the WCRC is also interested in the administration of the MSA once it is established. The MSA proposal should, therefore, include data detailing these activities, such as:
- who the administrator will be. Some MSAs are administered by professional service providers. In other cases, the Claimant elects to manage their own MSA account;
- the MSA structure, whether it's to be funded by a lump-sum payment or through an annuity arrangement that funds the account on a yearly basis. Note that all MSA accounts must be held in an interest-bearing account;
- the fees incurred for the establishment and administration of the account. Note that these fees are NOT included in the MSA account itself but must come from another unrelated source of funding, and
- finally - the agreed-upon MSA settlement amount stated in a fully executed settlement agreement.
2) Don't Muddy the Water
It's not unusual for an MSA proposal to include more than one injury, and CMS details how to manage those circumstances, too.
Document, Document, Document
The mandate to protect Medicare from paying for costs that aren't its rightful obligation is always the WCRC's primary concern, and multiple claims within a single submission can cloud the specifics of each. Ergo, asserting numerous injuries in a single MSA proposal also triggers the requirement to provide additional information to inform the WCRC about the proposed resolution of each of the cases. In these cases, the WCRC separates out each case according to the relevant date of injury (DOI).
Start at the Top
It is critical to inform the WCRC in the cover letter:
- that there are multiple injuries/cases included within the single MSA proposal, and
- how the Claimant intends to handle those.
The WCRC wants assurance of a complete accounting for each individual claim, so it will look to the Claimant's proposal for information supporting those declarations. Some Claimants can lump all the DOI cases into a single MSA amount and are also able to describe how those distributions will work in execution. Other Claimants may separate each DOI case into a separate MSA and build out those MSA amounts accordingly.
If the WCRC doesn't get enough information about managing multiple injuries, it will close the file until it receives that data in writing.
Parse Out the Data for Each DOI
The proposal should include all relevant information identified by DOI regarding accepted and alleged injured body parts. Most helpful for the WCRC reviewer are the appropriate ICD-9 or ICD-10 codes (noting that the ICD-9 codes apply only to injuries sustained before September 30, 2015). Accompanying the codes should all associated payment histories, medical records, and detailed prescription histories for all medications received as a consequence of the injury.
Note, too, that if less than all claims have resolved sufficiently for an MSA discussion and claims will remain open, then the overall case is not yet eligible for review. 'Open' cases include those where there are some body parts still receiving treatment, where the insurance carrier continues to pay from some but not all treatments on a particular body part, or where medical claims are settled but pharmaceutical claims are not.
3) Don't Miss the Mark on the Drug Data
A significant percentage of every MSA proposal covers the cost of prescription medications, and the WCRC will pay careful attention to the adequacy of the proposed prescription drug costs.
- All proposed medication must be FDA approved or supported for the designated use by the reviewers' compendia of pharmaceutical resources.
- The proposal should document how the proposed drug and pharmaceutical recommendations are in line with past drug history, provider medication lists, and treatment notes, and address the probable future need for prescription drugs.
- Note that the WCRC uses the Red Book Drug Reference guide as its pricing resource, using the Average Wholesale Price to establish those costs within the MSA.
- The reviewer will ascertain that any prescription drugs listed in the proposal were prescribed within two years specifically to treat the WC injury. They will also seek input from a pharmacist when there are questions and won't sign off on the proposal until those concerns are resolved.
All treatments included in the MSA proposal must also be covered by Medicare and follow both national and local coverage guidelines.
The Medicare Set Aside account provides the best possible support for an injured worker who needs ongoing medical care for that injury. When carefully crafted and correctly submitted, the MSA proposal avoids unnecessary delays and provides the documentation required to get the account established and the Claimant moving forward.