CMS Wins Again
Hi Jen,
I have been preparing and submitting MSA proposals to CMS for about 6 very long years. I believe CMS has finally beaten me down to the point that I have given up. However, I still must deal with a recent fiasco. I recently submitted a proposal, idiotically assuming that the actual retail price at the pharmacy actually used by the claimant would be more conservative than the average wholesale price under the Red Book. When the set-aside came back dramatically higher, I reviewed the NDC codes and the price suggested by CMS.
I learned that the drug in question, 10mg of Ramipril, has 28 different NDC codes, with prices ranging from $.26 per pill to $5.36 per pill. I suppose I should be pleased that CMS came back with a price of $1.89 per pill on this case -- but only $.33 per pill on another case I had -- even though the claimants in both cases had previously obtained Ramipril prescriptions under multiple NDC codes, including the $.33 per pill code.
How do you handle this random act of violence???
Thanks for your help and your excellent blog.
Attorney in FL
______________________________________________________________________
Jen Responds:
Dear Attorney in FL:
That would be a funny story if it didn't have such a tragic ending. Here is what we would do:
1. Not submit to CMS in the first place. Is the cost really worth the benefit?
2. If submitted and countered ask for a reconsideration by the regional office (good chance of that happening on this type of case)
3. If denied contact MSP central and ask for reconsideration
4. If denied, appeal to the Office of the General Counsel
5. If denied, sue in Federal Court
Let us know if you need help with Option 5. We are looking for motivated clients with damages to challenge CMS and their arbitrary acts. Sorry to hear of your misfortune. Hopefully your story will help other readers of our blog.
Categories: Questions and Answers, Medicare Set-Aside Allocations
I really just wanted to comment on this articles Option 5-Sue in Federal Court. I did have a successful #3 (Challenge through re-evaluation) which being conducted as we exchange blogged commentary. Item #4 is moot, as I do not believe for a split second that CMS is the actual culprit in the never ending delays and refusals of reaching a settlement. (SPECIFICALLY HOWEVER) on a WC Case with umbilical cord to the states (SIF), and ultimately Medicare's full interests.
Just to exclude the obvious, SIF DOES NOT under any circumstance provide relief for medical payments past current or future of any kind. What they can provide the Respondent however, is a determination (which can be argued later) that will provide an "impression" of a pre-existing injury (disability) to the work related injury, which in most cases, shall release the Respondent from the complete 100% PTD caused by the injury and post injury behavior of the Respondent.
The Respondent's Counsel is fully aware that the delays they produce appear to be costing their client's large amounts of financial losses. The truth, if the Respondent's Counsel could prevail in a full trial, why not have at it? The first reason is simply, THEY MAY LOSE. The second reason, the Respondent's legal strategies to delay settlement could indeed cost their clients (possibly) hundreds of thousands while the clock ticks on. The advantage is that Respondent's Counsel can convince their own client that by waiting the maximum statute of the particular States maximum timeline, the Respondent's client gets a "frozen in time and amount" future MSA lump sum figure. They pay the lump sum, they pay the indemnity due the Petitioner's lifetime, conditional re-payments, expenses, outstanding invoices etcetera (which they already know they own). But MED FOR LIFE is bought out by the WCMSA Approval, four or five years old, but frozen at the submission date formulary prices. The injured worker wants to close the case PERIOD. They accept a seemingly large lump sum indemnity payment, the medical bills they believe covered under Medicare Part D coverage. So they take the offer and their own Counsel presents it as a strong and fairly accepted DEMAND.
The checks begin to flow, the Respondent has been getting paid all along, saving decades worth of medical treatment and RX costs. Petitioner's Counsel gets 20% of a nice chunk of cash plus expenses. Everything seems fine until that LUMP SUM RX check is exhausted. Then yearly deductibles show up at the party, donut holes boogie right in, RX costs continuing to rise.
The Respondent is now fully FREE & CLEAR of any medical costs, and utilizing his/her part D begins the TrOOP until they die. and the petitioner still hasn't realized, Counsel has sold him out, and has been paid for same.
I have a made "prima facie" WC Case. I have a WCMSA Approval. I am way past Option 5, and it is NOT CMS. It's the DWC/Respondent arbitrary actions causing 100% PTD, I'm ready to sue. Are You?
Reply to this