Katie A. Fox, MSCC – VP Medicare Compliance
On August 1, 2012 CMS released yet another Memorandum providing guidance to MSA Allocators, as it pertains to pricing for Transcutaneous Electrical Nerve Stimulation (TENS) units included within submitted Workers’ Compensation Medicare Set-Aside (WCMSA) proposals.
CMS has defined Chronic Low Back Pain (CLBP) as the following: “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.”
Ultimately, CMS has found that “TENS unit is not reasonable and necessary for the treatment of CLBP, in accordance with the provisions of section 1862(a)(1)(A) of the Social Security Act.”
What is the impact of this change? Effective June 8, 2012, for those Workers’ Compensation cases settled prior to June 8, 2012, and where the settlement included pricing for TENS for CLBP, CMS will consider funds spent for TENS for CLBP by beneficiaries and claimants as being an appropriate expenditure of funds as part of the WCMSA.
However, CMS goes on to explain, “For those WC cases that were not settled prior to June 8, 2012, and where the WCMSAs proposal includes funding for TENS for CLBP as part of the WCMSA, CMS will re-review the cases and remove pricing for TENS for CLBP.”
This decision will reduce the cost allocation for cases that have not settled prior to June 8, 2012, but will increase the difficulty for beneficiaries to self administer their WCMSA account. Providers are unable to give guidance to beneficiaries as to what is Medicare reimbursable as the provider has no knowledge of the impact of settlement dates on the reimbursement status. The memorandum of August 1, 2012, further supports the benefits of professional and assisted administration services. While the settlement funding source should see this change as a win on reducing the cost of the allocation, the complications to self administered settlements continue to increase. Caution should be taken in all Medicare beneficiary settlements where the beneficiary seeks to self administer the account. Franco Signor continues to monitor the evolution of WCMSAs and reviews each case individually to provide recommendations specific to the facts of each settlement, providing our customers with cost effective options that mitigate MSP exposures.