CMS Releases New WCMSA Reference Guide Version 3.9

On May 15, 2023, the Centers for Medicare & Medicaid Services (CMS) issued an updated Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) User Guide version 3.9, which contains several important updates as noted below.

Section 16.3: Amended Review

The most significant update in version 3.9 involves the time frame available to complete an Amended Review. CMS continues to require that 12 months lapse from the date of the conditional approval/approval of a WCMSA before an Amended Review can be submitted. However, there is no longer a maximum time limit for the Amended Review to be submitted to CMS. CMS previously excluded Amended Reviews that were submitted after 72 months had passed. However, this time limitation has been removed.

This is welcome news for those parties who were unable to avail themselves of the Amended Review process due to the limitation of the 72-month time frame and were unable to resolve the medical portion of the claim due to the WCMSA amount.

Section 9.4.5: Intrathecal Pump, Spinal Cord Stimulator and Peripheral Nerve Stimulator

CMS has updated the calculation for the frequency of permanent placement/replacement of Intrathecal Pumps, Spinal Cord Stimulators, and Peripheral Nerve Stimulators as noted below.

Intrathecal Pump (IT Pump)

As part of its policy, CMS assumes that a beneficiary would obtain an IT pump within the first year following settlement (if not already placed), or at the next routine interval for replacement. Routine placement interval is every 7 years. In cases where an IT pump is not already placed, CMS now allows for the removal of one year from the claimant’s life expectancy before replacement calculations occur to account for the initial placement. CMS provides the following examples to illustrate the calculation:

Examples:

• Beneficiary life expectancy is 21 years and no IT pump is yet placed. Take the 21 years, subtract one year for the initial placement, divide the remainder by seven, and use the whole number with that result. (21-1)/7 = 20/7 = 2.86 One initial placement is needed, plus 2 replacements.
• Beneficiary life expectancy is 12 years and an IT pump was placed three years prior. Take the 12 years, subtract four years for the most recent placement, divide the remainder by seven, and use the whole number with that result. (12-4)/7 = 8/7 = 1.14

Spinal Cord Stimulator (SCS) / Peripheral Nerve Stimulator (PNS)

CMS replacement interval for SCS and PNS devices is every seven years for non-rechargeable units and every nine years for rechargeable units (from the most recent placement date). Applying the same methodology utilized for IT pumps, CMS allows for the subtraction of one year from life expectancy if the device has not been placed to calculate replacements or to account for the initial placement.

Sections 9.0, 9.46, 9.5, 18.0 and Appendix 5

CMS Regional Offices (ROs) are no longer approving initial WCMSA determinations. As a result, process language and contact information have been updated throughout the guide (sections 9.0, 9.46, 9.5, 18.0 and Appendix 5). Specifically, CMS notes in pertinent parts of the guide, as follows:

Section 9.0:

The WCRC applies CMS’ criteria in reviewing proposals and making a determination, and forwards the final determination on the appropriate funding amount to CMS. (page 10)

Section 9.6:

If the claimant is living, the case meets workload review thresholds, any needed development has been received, the case is not closed for other reasons, and the WCRC’s recommendations have been provided, then an approval letter is issued to the submitter with a determination as to the final CMS-approved WCMSA amount. After receiving the final settlement agreement, according to the applicable state law, the RO updates Medicare’s records with the final settlement date. (pages 36-37)

Additional Changes

CMS also updated the guide to include a link to the current CDC Life Table, updated the zip code for the Walnut Creek Medical Center, and noted that all WC letters signed with CMS’ Director of Financial Services Group name and signature image have been updated to reflect the current CMS customer service contact information.