When CMS wants more documentation than is included with a proposed MSA, CMS sends a "development letter," requesting further information.  If CMS does not receive the requested material within thirty days, the file is closed without completion of a review, and the proposed MSA remains unapproved.  CMS reopens the file upon receipt of the requested material, but the development process delays approval.  Since we are currently experiencing longer wait times than usual due to CMS backlog, further delays caused by this development process can be frustrating and even destructive to settlement negotiations.  The best way to avoid delays, is to anticipate what CMS will require and submit it with the proposal. 

A common CMS request is for more medical records. This newsletter will address a frequent question from our clients:   "How can we provide medical records for the last two years, when they don't exist?"  The CMS website (www.cms.gov) provides a list of "Top Ten Submitter Errors and Helpful Hints to Avoid Them (August, 2010)."  Based upon this CMS guidance and our own practical experience, the following are ways to satisfy CMS medical record requirements:  

1.       When the claimant ended work injury treatment long ago:  First, submit the last two years of medical treatment records, even when the last two years of treatment were long ago.  Second, it will also be necessary to obtain a signed physician's statement on the physician's letterhead to verify the last date of service and the last date medication was prescribed.  (CMS will not honor a statement from the physician's office staff, unsigned statements, or statements with illegible signatures that do not include the physician's printed name underneath.  We will provide a sample statement to you upon request.)   Note that if the claimant's most recent treatment was provided by more than one physician, signed statements from each physician will be necessary to confirm that all injury related treatment ceased. 

2.       When a signed statement cannot be obtained from the last physician who treated the work injury:  One alternative is to gather medical records documenting more recent treatment clearly unrelated to the work injury.  Let's say we have the last two years of medical records for work injury treatment, which ended in 2008.  However, the only doctor who was providing work injury treatment retired in 2009 and is not available to sign a statement verifying that the treatment ended.   If no further work injury treatment was obtained from a different medical provider, supplementing the 2007/2008 related treatment records with the claimant's family doctor records from 2009/2010 will help confirm the absence of treatment for the work injury.  The same strategy applies to the drug documentation that CMS requires. If no injury related prescription drugs were used for the last two years, a pharmacy summary showing only unrelated drug refills will help confirm that no drugs are being taken for the work injury. 

3.       When treatment with the authorized physician ceased, but the claimant has obtained treatment for the work injury from unauthorized physician(s):  Send the last two years of injury related treatment records, even if the treatment was not paid for by the Employer/Insurer.  It is a common misconception that CMS only takes into account treatment recommendations from Insurer authorized physicians. 

CMS reviews the MSA according to the medical condition of the claimant at the time of review.   Therefore, providing only old records will generally provoke a CMS development letter.  Another way to trigger a CMS development letter is to submit a claims payment history that documents further payments to treatment providers with no accompanying medical records.  Sending a complete proposal package to CMS can substantially reduce the wait time for CMS approval of the MSA, putting case parties closer to their goal of settlement.  If you receive a development letter and have questions about how to get CMS to complete the MSA review, always feel free to contact us for help.