by Emily Anderson, Esq.

Prior to July of this year, submitting an MSA to CMS held more of a risk, since the initial amount approved by CMS was typically the amount the parties were stuck with, even if circumstances changed. CMS would only review an MSA once, unless there was an obvious mistake (i.e. a math error) or there was additional evidence, not previously considered by CMS, which was dated prior to the submission date of the original proposal which warranted a change in CMS’ determination. This very limited re-review process frustrated employers, carriers and even claimants who were unable to obtain a revised CMS MSA approval after a substantial change in the claimant’s pre-settlement medical condition. When parties do not settle, there is a high chance that the medical circumstances of the claimant will drastically change. Therefore, this inability to obtain a re-review often prohibited claims from ever settling as the MSA was too high based on the new circumstances.

However, as of July, a MSA re-review process by CMS is now available. Previously approved MSAs can now be submitted to CMS for re-review if the following criteria are met:

  • The original MSA submission was between one and four years from the re-review request;
  • The re-review request cannot have had a previous request for an amended review;
  • The amended MSA amount must differ from the prior submission by at least 10% or $10,000, whichever is greater; and
  • The sole reason for the re-view cannot be a change from brand to generic drugs. This means, in order to submit for re-review, you must be able to show change in dosage or frequency or the addition/subtraction of certain medications.

Under this process, CMS also requires that additional medical details be provided such as the type of additional medical treatment being required, or specifically noting which treatment/care is no longer required.

The most limiting of these restrictions is that CMS will not re-review submissions that are over four years old. This will limit the potential for settlement in some of the older cases that many employers and insurers want to get off their books. However, overall, this is a welcome policy change which will increase the ability to settle claims and benefit all parties involved in this process.