The Center for Medicare & Medicaid Services Learns about Due Process: Amended Review of Approved Medicare Set-Asides and What it Means for Defense Bar

Recently, the Center for Medicare & Medicaid Services (CMS) promulgated a revised Medicare Set-Aside (MSA) Re-Review process. This “Amended Review” process is significant, as it actually provides those submitting MSAs for approval with an opportunity to revise and amend submitted MSA proposals upon an unfavorable determination from CMS.

Previously, CMS has either been unwilling to re-review a submitted MSA or has limited its review following its determination. This has been true even in the face of a significant change in a claimant’s medical condition, even if this would result in a lower MSA allocation. This has frustrated carriers who upon receiving a CMS determination have attempted, through litigation or alternative means, to reduce the future medical cost projection and their overall long-term exposure. Typically, CMS would only re-review a determination where a mathematical error had occurred or it was provided with additional evidence (pre-dating CMS’s determination) that had not previously been reviewed by CMS.

The changes promulgated by CMS are termed “Amended Review” and require the following:

  1. The MSA must have been originally submitted between one and four years from the date of the re-review submitted;
  2. The re-review requested cannot have had a previous request for an Amended Review; and
  3. Must result in a 10 percent or $10,000 change (whichever is greater) CMS’s previously approved amount.

This limits us to one Amended Review per case. The submission must attach medical and/or legal documentation that supports the MSA proposal resulting in a 10 percent or $10,000 change. CMS will now review any relevant documentation that post-dates CMS’s original determination. This Amended Review does not change or affect the process of review where it is alleged that CMS has made a mistake or failed to review relevant information pre-dating its determination.

What does this mean for the defense bar and parties seeking MSA approval? First, it means we get a second bite at the apple when CMS’s reviewers decline to approve a favorable MSA worked out for our clients. This will include addressing a claimant’s medical history either through additional litigation, compromise, or settlement to limit exposure. Secondly, it also means that should a claimant’s condition dramatically change for the worse post-CMS approval, clients are adequately protected by submitting for Amended Review an MSA that takes into account this change in condition.

 

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