WCMSA User Guide Six-Month Follow Up: Spinal Cord Stimulator Pricing and State-Specific Statutes


By Annie M. Davidson Esq., MSP Compliance Counsel 

Earlier this year the Centers for Medicare and Medicaid Services (CMS) released a significant update to its Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide. As with any significant update, experience over time provides insight as to how the Workers’ Compensation Review Contractor (WCRC) interprets the new guidance. Below is an update on what we see.

Spinal Cord Stimulator (SCS) Pricing

As indicated in the updated user guide, the WCRC has updated its review policies for allocations involving spinal cord stimulators, including trials. Pricing is no longer a flat rate set by CMS and the WCRC. Now it is jurisdictionally-specific and the pricing reflects local charges, which may include pricing for physician, facility, and anesthesia fees. In some states, those amounts are much higher than would have been seen prior to the Reference Guide updates.  ExamWorks Clinical Solutions has gathered and will continue to gather jurisdiction-specific pricing on approved MSAs to ensure our MSAs use the most up-to-date pricing available.

What does the change mean for your case?

If you have a case involving an SCS, then you can expect our team of top-notch nurse planners will be using up-to-date pricing that we have compiled based on recently approved MSAs.

State-Specific Statutes

CMS updated its views on state-legislated, non-compensable medical services; state-specific statutes limiting future treatment; state-legislated time limits that alter pricing; and treatment that is varied by some type of state-authorized utilization review board. The guide indicates that:

CMS will recognize or honor any state-legislated, non-compensable medical services and will separately evaluate any special situations regarding WC cases. CMS will recognize WC state-specific statutes addressing the limits of future treatment regarding the length or nature of future treatment, provided that the submitter has demonstrated that Medicare’s interests have been adequately protected. A submitter requesting that CMS review the applicability of a state WC statute must include a copy of the statute with the submission, and indicate to which section topic in the submission the statute applies.

Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate. For those states where treatment is varied by some type of state-authorized utilization review board, the submitter shall include the alternative treatment plan showing what treatment has replaced the treatment in question from the beneficiary’s treating physician for those items deemed unnecessary by the utilization review board. Failure to include these items initially will result in pricing at the full life expectancy of the beneficiary or the original value of treatment without regard to the state utilization review board recommendation.

What does the change mean for your case?

In all states where you are attempting to rely on a state-specific statute limiting care, then the parties must still submit a copy of the applicable statute, but the WCRC may need to see a ruling from a court of competent jurisdiction or the appropriate state entity that the statute is applicable. For example, a ruling in Oklahoma indicating that the claimant has reached maximum medical improvement (MMI) such that only future treatment in the form of continuing medical maintenance (CMM) is necessary, or a ruling in Georgia indicating the injury meets the state definition of non-catastrophic such that future care is limited to 400-weeks, etc. 

In California, if you are relying on Independent Medical Review (IMR) decisions to limit future care, the decision is no longer enough on its own to exclude care. There needs to be evidence that supports the exclusion. In other words, you need proof that the treating physician is following the IMR decision or be able to show that Medicare’s future interest is protected through an alternative drug or treatment plan. It is important to note that failure to include the required documentation at the time of the original submission will not constitute a reason to request re-review.