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The
Problem:
Despite
receiving "counter higher" rejections from CMS
-- hundreds of thousands of dollars higher --
some MSA firms continue to offer their clients
deceivingly low MSA figures based on drug
utilization reviews (DUR) that CMS continues to
reject.
In their quest for a niche in the market, they
wrongly claim CMS will reconsider these counter
higher MSAs in the future. More than one
source has informed us that some MSA vendors
advise simply waiting a couple years after the
CMS counter higher and then resubmitting to CMS
with a request to review a second time.
These same firms have been requesting
reconsiderations of their countered higher MSA
rejections for over a year with no success. Yet,
they continue to lead their clients down this
murky path.
Old
News:
The CMS August 25, 2008 policy memo
unequivocally rescinded
the earlier July 11, 2005 CMS policy memo, which
allowed a beneficiary to propose a new MSA when
his medical condition improved after CMS
previously approved a higher MSA amount.
Moreover, CMS policy has always been clear that
there is no appeals process. New
News: According to Frank
Johnson at the CMS Central Office, CMS does not
have the resources to provide multiple reviews.
For those who want to know the truth, follow
this link to my recent colloquy with Frank
Johnson. Click here for CMS
memo.
CMS
will consider a "request for rereview," when
medical records that were not previously
submitted to CMS predate the
CMS "counter higher" rejection. We have been
successful in a number of cases where such
records supported lower MSA costs. However, CMS
will not reconsider additional medical records
that are dated after the date of the CMS
"counter higher" rejection. Asking the treating
provider to alter the drug regimen or reconsider
a spinal cord stimulator recommendation after
receiving a CMS rejection will not
work.
The
Solution:
Doesn't
the above described "poor practices" approach
only further add to the problem recognized by
the well-known P & C blogger Joe Paduda in
his post of March 28, 2011? Link to article.The best practice
when claimants are Medicare eligible and medical
costs are high is to delay submission of the MSA
to CMS until the claimant is at MMI and efforts
have been made to reduce the medical costs.
MSA's are works in progress only until CMS
reviews them. Therefore, timing is
everything. Avoiding premature CMS evaluation
affords the claimant an opportunity, for
example, to work with the treating provider(s)
in modifying the drug regimen to reduce the
costs. Then, the MSA can be revised to
incorporate the changes before submission to
CMS. This approach is far more effective than
the present poor practice of submitting a low
MSA based on a drug utilization that CMS will
not find acceptable. Given current CMS policy,
the odds of CMS approval are much greater when
an MSA is based on the medical records and
current, actual drug
regimen.
Don't
Let Them Sell You Swamp Land!
Settling
parties must reasonably consider Medicare's
interest while balancing this consideration with
their valuation of the claim, their risk/benefit
analysis, and a best practice approach to
arriving at a MSA that is most likely to hold up
under scrutiny. If settling parties continue to
buy some MSA vendors' marketing ploy that CMS
will take a second look at these "rejected"
MSAs, then I have some acreage for sale just
south of Waycross. It's
called the land of the trembling earth &
don't take your dogs there 'cause gators run
fast.
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