ExamWorks Compliance Solutions recently issued an Industry News Bulletin concerning an abrupt rule change to a long-standing CMS policy regarding approval of Legal Zero MSAs (see article here). CMS provided no notification of the rule change prior to the rule’s implementation by the Workers’ Compensation Review Contractor (WCRC). Accordingly, following our confirmation of the rule change with the WCRC, we immediately placed all Legal Zero MSA matters on hold and voiced ours concerns regarding this unannounced rule change to the CMS Central Office in Baltimore.

CMS Responds to Query

On 10/31/2016 CMS issued the following statement:

CMS recently received inquiries regarding procedural changes in the way that CMS’ Workers’ Compensation Review Contractor (WCRC) reviews proposed zero-dollar Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts.  CMS determined changes had transpired without prior notification. Effective immediately, the WCRC will utilize procedures that were previously in effect.  CMS continually evaluates all policy and procedures related to WCMSA reviews and will publish any pending changes when or before they go into effect.

Procedural Impact of Today’s Announcement

CMS rolled back a rule change which would have required the following to substantiate a Legal Zero MSA:

•  Court ruling regarding the compensability of the claim; or,
• Treatment records which demonstrate/indicate that no further treatment for the alleged industrial condition(s) will be required.

As these documents are no longer required to substantiate a Legal Zero MSA, ECS is taking the following actions:

Legal Zero MSA submissions pending review with CMS:  If CMS has issued a Development Letter requesting either a court ruling regarding the compensability of the claim or, treatment records which demonstrate/indicate that no further treatment for the alleged industrial condition(s) will be required, then ECS will request the WCRC complete its review without this additional documentation.

Legal Zero MSA submissions pending submission to CMS:  For clients who requested submission of the Legal Zero MSA, but the submission was placed on hold as a result of the rule change, ECS will reinitiate the submission process.

Matters recently referred to ECS for qualification as a Legal Zero MSA:  ECS will proceed with qualifying the referral as a Legal Zero MSA if it meets all criteria in place prior to this now invalidated rule change. Typically, a Legal Zero MSA is substantiated by a claim payment history documenting no payments for medical treatment and indemnity and a letter from the adjuster or defense attorney confirming such a denial.

Uncertainty Still Looms

What remains uncertain in this announcement is whether CMS will indeed make a policy change regarding its review and approval of Legal Zero MSAs, but only after providing adequate prior notice.  We will continue to monitor CMS for any further announcements/notifications in this regard.