January isn’t over and we’ve already seen our second policy change from the Centers for Medicare & Medicaid Services (CMS) in 2025 affecting Medicare Set Asides (MSAs). The first came by way of an alteration to the Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide addressing the upcoming elimination of review for zero-dollar MSA proposals as of July 17, 2025. Less than a week after the revised reference guide issued, CMS released an e-mail notice reiterating the policy change for zero-dollar MSAs and noting the following modification related to the Amended Review Process:
Currently, amended review requests cannot be submitted until 1 year after a WCMSA case has been approved. Effective April 7, 2025, amended review requests will be allowed at any time after a WCMSA case is approved.
What is the Amended Review Process?
When a settlement meets review thresholds and following voluntary submission and approval of an MSA, in the event “…CMS does not believe that a proposed set-aside adequately protects Medicare’s interests, and thus makes a determination of a different amount than originally proposed, there is no formal appeals process” for the parties to contest CMS’ determination. See WCMSA Reference Guide, v4.2, Sec. 16.1.
An aggrieved submitter may request a “Re-Review” pursuant to conditions and limitations established in Sec. 16.1 & 16.2 of the WCMSA Reference Guide. However, Re-Reviews are typically limited to areas such as CMS’ mathematical error, missing documentation (dated prior to the submission date) or an error in CMS’ review of submitted documentation or a submission error (as it relates to documentation submitted).
However, what if parties to a settlement are stuck with an MSA counter higher figure that precludes settlement, but circumstances change after CMS’ determination which warrant a change to the originally submitted MSA figure? This is where Re-Review comes in. In July 2017, CMS added the Re-Review process which permitted a one-time “…re-review in the form of a submission of a new cover letter, all medical documentation related to the settling injury(s)/body part(s) since the previous submission date, the most recent six months of pharmacy records, a consent to release information, and a summary of expected future care.” WCMSA Reference Guide, v4.2, Sec. 16.3.
To be eligible for Re-Review, subject to criteria and limitations specified in Sec. 16.3, the:
- Case cannot have settled as of the date of the request for re-review;
- Projected care has changed to the extent the new proposed amount would result in a 10% or $10,000 change (whichever is greater) from CMS’ previously approved amount.
Initially, Re-Review required a waiting period of 1 year and there was a maximum time limit of 4 years (following CMS’ original determination date). The time limit was increased to 6 years and then eliminated altogether in 2023. However, the 12-month waiting period remained – until CMS’ notice indicating that on April 7, 2025 amended review requests will be allowed at any time after the MSA is approved.
Arguably, eliminating the time limit altogether was more impactful than dropping the 1 year waiting period. However, any reforms to the voluntary submission process are welcomed by the industry. If circumstances are warranted, and applicable criteria / conditions are met, this upcoming change will allow parties to engage in the Re-Review process immediately.
Maximizing the Re-Review Process
For applicable claims affected by a counter-higher and not yet settled, there’s an opportunity to determine if a claim is appropriate for Re-Review and potential settlement. Some areas for inquiry and tactics include:
- Obtaining an updated MSA allocation, paying particular attention to the original cost-drivers
- Determining if healthcare services or prescription drug utilization has changed
- Identifying past and current cost-drivers and engaging in cost-mitigation
- Re-engaging in settlement discussions
- Assessing any changes in life expectancy
There’s an incredible opportunity for workers’ compensation carriers, self-insureds, TPAs and attorneys to evaluate unwanted determinations by CMS. There are strategies to reach resolution even in the case of a counter higher that might be an impediment to an otherwise great settlement. Reach out to Shawn Deane, J29’s General Counsel & VP of Claims Solutions for information on how to settle languishing claims which may be affected by a counter higher. J29 will conduct a free claims review and analysis for your best path forward to resolution. You can reach Shawn at: Shawn.Deane@j29inc.com or at (866) 529-6771.
