Attention to detail cannot be overstressed when it comes to finalizing Medicare Set-Asides. The Centers for Medicare and Medicaid Services is very specific regarding what can and should be included to gain its approval. Beyond that, those setting up the MSA need an in-depth understanding of the rules to ensure the injured worker gets what he needs while keeping costs in check.
The CMS rules for MSAs are intricate and laced with nuances. Additionally, the agency often issues changes intended to ease the process. That means those tasked with creating the MSA must have a clear understanding of the latest iteration of the rules.
MSAs
An MSA is a portion of a total workers’ compensation settlement designed to cover expenses for all future medical expenses related to the workplace injury that would otherwise be reimbursable by Medicare. The goal is to identify as accurately as possible the total cost that will be incurred during the injured worker’s life.
CMS approval is not a legal requirement for an MSA. However, the potential financial repercussions for providing an inadequate MSA are such that many industry stakeholders find it wise to submit proposed MSAs to the agency.
Estimating the future medical costs takes enormous skill. For example, the final amount takes into account only the expenses related to the specific injury. Also, it needs to include things such as durable medical equipment that, while not needed presently, may be necessary in the future. Surgeries and other recommended medical treatments should also be included.
At the same time, the MSA should not include treatments or medications that are either not related to the injury or are not currently being used, or expected to be used by the injured worker. Unfortunately, when treatment recommendations are not clearly stated in the medical records, the concern that CMS may return a ‘counter higher’ response can lead many to overfund MSAs — especially, in the case of medications.
Case Study (Provided by Tower MSA Partners): $951,189 in Savings from MSA Optimization
CMS guidelines stipulate that medications listed as ‘active’ by the treating physician should be included in the MSA — even if the injured worker is not taking them.
Challenge
Pennsaid (Diclofenac Sodium) is a topical, nonsteroidal anti-inflammatory drug used to treat pain. The injured worker received a sample of the medication and a prescription of Pennsaid 1.5 percent for low back pain. However, the medication did not effectively manage the pain, so the injured worker never filled the prescription. The claims adjuster was unaware of the prescription since it had been provided as a sample dose followed by a paper prescription.
Total MSA Exposure — $970,355
Solution
Tower MSA’s physician follow-up team worked with the assigned nurse to make the treating physician aware that the injured worker was not filling the prescription. The doctor agreed to discontinue the medication and replace it with an oral version of Diclofenac. He also offered to prescribe Nabumetone, another nonsteroidal anti-inflammatory medication used to treat pain. However, the injured worker also did not fill that prescription.
A letter was sent by the physician to confirm discontinuation of the ‘active’ medication. It included the following language:
“I discontinued [the injured worker’s] Pennsaid 1.5%. He was offered Nabumetone, but the patient declined this medication.”
The pharmacy benefit manager blocked both medications to prevent the possibility of either being reintroduced. The letter from the physician was appended to the MSA, and both Pennsaid and Nabumetone were removed from the prescription drug portion of the allocation.
Results
In its review of the MSA, CMS accepted Tower’s physician letter as evidence of the discontinuation of both drugs and approved the MSA in full.
The removal of Pennsaid and Nabumetone drastically reduced the MSA allocation:
| Initial MSA Allocation | $970,355 |
| Savings from Removal of Pennsaid & Nabumetone: | $951,189 |
| Final MSA: | $ 19,166 |
Conclusion
Injured workers should not have to worry about paying for future medical expenses related to their workplace injuries after they settle their workers’ compensation claims. At the same time, overpaying an MSA for unused and unnecessary services and medications serves no one’s best interests. It’s important to use experts to ensure the appropriate funding amount is allocated.
Author Michael Stack, CEO Amaxx LLC. He is an 
expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center .
Contact: mstack@reduceyourworkerscomp.com.
Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/
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