On June 2, 2009, CMS published guidance for WCMSA submitters regarding prescription drug issues under the new independent review procedures effective June 1, 2009. In response to an obvious barrage of inquiries by the WC community since the AWP memo was released on April 3, 2009, CMS has addressed many of the issues that the memo raised. Despite the conciliatory tone, CMS has not really conceded to any of the issues raised.

CMS has stated essentially that it will consider any evidence presented with a WCMSA proposal, however absent a clear and definitive statement from the treating physician (bolded in the publication in case you overlooked it) supporting whatever you are trying to prove, it is not likely to consider your rational for not including a lifetime supply of all current drugs in use priced at AWP.

What CMS did remind us is that the Patel Memo said that WCMSAs are only appropriate after MMI has been reached, which explains a lot about the rationale behind some of its review policies. If at MMI with a permanent impairment, I guess the assumption is that  the drug regime is stable, consistent and unchanging. There should be no question of titration or termination of the drugs in question at the time of review. If it were only that easy. This type of naivety toward the insurance settlement process is why there is such a backlash against the WCMSA review process.

CMS continues to ignore the fact that the workers' compensation program is contentious and that very frequently the "medical evidence" that it is basing its opinions on is not truly reflective of the reality of the claimants' medical situation. In statement #3, CMS agrees to consider a tapering program if proposed by the treating physician. If claimant is at MMI with a stable need for his current meds, why is he suddenly able to taper in anticipation of settlement? CMS routinely ignores any evidence that at the time of submission claimant has virtually ceased treatment in anticipation of settlement and will require funding of a WCMSA based upon the past medical record. Accepting the treating physician's recommendations without question is like letting the claimant's attorney set the reserve on a claim or the defense attorney deciding to accept a settlement offer on behalf of the claimant. While you may get an accurate result on occasion, there might just be a little bias built into the process.

Other disappointing points of interest concerned patent expiration, off-label uses and DURs, none of which it appears will be genuinely considered considered despite CMS assurance to the contrary. The only scenario where it might be considered is if the treating physician convincingly makes a statement as to the applicability. We find it unlikely that a treating physician with 15 minutes to see a patient is going to take the time to clearly and concisely advocate for less treatment in the interest of documenting the medical record for MSA purposes.

CMS' stand is that anything can, and may, happen to an individual's pharmaceutical needs, however CMS has elected to err on the side that benefits it most and require the most costly funding scenario. With respect to off-label utilization, CMS correctly makes the point that it is legal to prescribe drugs off -label in the United States. The part they fail to realize is that many off-label uses would NOT be Medicare covered under the Part D program if the drug is not part of a formulary. More on this subject at a later time.

On the bright side, at least CMS answered one question. The MSA industry now knows that it may search through the hundreds of listings in Redbook for any given drug to seek out the least expensive NDC. We wonder if the WCRC will dedicate that much time to the task while it is independently pricing drugs? Should they fail to select the least expensive option, will that decision be subject to reconsideration?

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