CMS Guideline Updates:
- CMS allows a one-time amended review when the allocation amount will change 10% or 10k, whichever is greater and other criteria are met (See our prior eblast and blog on Amended Reviews.)
- Zero MSAs are no longer reviewed by CMS, and if you settle out on a zero MSA, keep the CMS criteria in mind and document appropriate language in your settlement docs (see our prior eblast and blog on Zero MSAs.)
New Trends by Carriers and CMS:
- A new CMS trend is to include psychiatric care over LE in cases with diagnoses of PTSD or when the injured worker is on psychiatric medications.
- A review of CMS “counter-higher” MSAs is showing a trend to also include Botox on a longer-term basis when indications for Medicare coverage are met.
- If the injured worker has a diagnosis such as CRPS or another diagnosis that is typically not curable, even if it may go into remission, CMS often requires that care be calculated over LE, even if the primary treating physician limits care to a few years.
- Under most circumstances, CMS will not consider IME, AME, or QME opinions regarding future care. CMS gives primary treating physician (PTP) recommendations deference when allocating future medical. However, the PTP recommendations must be consistent with the prior treatment history, and if not, are being carried out over longer periods by CMS if the PTP recommendations are inconsistent with the treatment records. For example, a CRPS patient has been treated consistently for the most recent 2 years with pain management, orthopedic follow-ups, and regular medications. At MMI, the PTP says future care is needed only for 1 year. CMS has been sending “counter-higher” notices allocating treatment for more than 1 year, and often over LE, depending on the diagnosis covered in the MSA.
- Trial medications, “take as needed” prescriptions, samples of medications, and weaning of medications can be problematic in an MSA if prescribed right before MMI, as CMS may choose to include these over LE.
- Treatment plans that include admitted body parts in the same report as those not admitted under the claim (often seen in Kaiser and VA records), muddy the MSA waters and can affect future Medicare benefits.
As a result of the above trends, attorneys for injured workers should be prepared for more proactive “triage” endeavors by the carrier and MSA vendors prior to MMI or if an MSA is being done. Carriers are taking a more aggressive and proactive approach when approaching treating physicians to clarify/exclude medications, surgeries, Botox, and other long-term care. Sometimes it behooves the injured worker to also take a proactive approach regarding certain items. For example, they may agree that a certain trial medication is not working, and may choose to take a proactive approach by having a PTP provide clear documentation to remove an expensive medication from an MSA to facilitate settlement. Or, if Botox is working, it may be important to make sure there is good medical documentation for continued injections.
Want to learn more? MSS can help attorneys for injured workers understand the implications of a “triage endeavor” and get an adequate assessment of future care needs based on CMS guidelines, along with additional carrier exposure to use as leverage for settlement negotiations.
Do you have questions about MSAs, how to value future medical care or posturing your cases for future medical settlement? Contact us for more information!
Our step-by-step process to get MSS working for you couldn’t be EASIER:
- Use our client portal at medicalsettlementspecialists.com to
complete a case intake form and upload documents. - On our intake form, tell us your settlement goals (for example, understand the medical exposure, help educate your client regarding their potential risks/benefits of settlement, review an MSA for accuracy, identify non-Medicare covered items, review contested body parts that may be related, etc.)
- Once you receive your draft report, schedule time to learn the best ways to utilize this powerful TOOL we have built for you!