CMS recently released Version 3.0 of its WCMSA Reference Guide, what we informally call the “MSA bible.”  The reference guide provides most CMS policy and procedures relating to its review of Workers’ Compensation Medicare Set-Asides.

The updated guide can be found here.

Notable additions or changes to this version are detailed below with takeaways and comments.

Amended Review Criteria Expanded to Six Years

CMS has expanded the Amended Review MSA lookback from one to four years to one to six years post the prior MSA approval.  As a refresher, the Amended Review process in Section 16.2 allows a new MSA to be submitted following a prior approval if all of the following criteria are met:

• CMS has issued a conditional approval/approved amount at least 12 but no more than 72 months prior,
• The case has not yet settled as of the date of the request for re-review.
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Tower appreciates CMS expanding the lookback to six years as this should allow for more cases to be submitted through this process and potentially settle with an MSA that better reflects the claimant’s current and future course of treatment.  If your case may meet this criteria, please contact Tower to review and determine the feasibility of submitting an Amended Review MSA.

Claimant Authorization to Submit Added to Consent to Release Form

Longstanding policy requires any MSA submitted to CMS must include a Consent to Release form signed by the claimant.  The primary purpose of the document is to provide Medicare beneficiary authorization for CMS to communicate with the MSA submitter concerning the workers’ compensation claim.

Per the updated reference guide, effective 4/1/2020 a consent must include the following language:

Further, I have had the Workers’ Compensation Medicare Set-Aside Arrangement need and process explained to me, and I approve of the contents of the submission.

Beneficiary Initials: ____

As a result of the addition of this statement, CMS is effectively asking the claimant to approve the MSA along with supporting documents in the submission.  We anticipate two consequences as a result of this addition:

• Claimants will sign the consent but forget to initial this section.
• Claimants will not sign the consent until such time as they review the MSA and perhaps the supporting documentation, i.e. medical records, which are submitted with the MSA.

While we understand CMS wanting to ensure the claimant understands the purpose of the MSA, we would assert this is already effectively done, in most cases, as part of the settlement process.

At this time, Tower will continue to use the Consent to Release without the requirement that the claimant approve the MSA submission.  However, we will need to begin using the revised consent as we get closer to 4/1/2020.

Submission of Annual Attestations through the WCMSAP

As we previously discussed in CMS Adds Electronic Submission Option for MSA Attestations, CMS is now allowing MSA self and professional administrators to submit annual attestations through the Workers’ Compensation Medicare Set-Aside Portal (WCMSAP).  Section 11.1.1. of the guide was updated to reflect the addition of this feature and a new Section 17.6 “Electronic Attestations” was added which directs both MSA self and professional administrators to the WCMSAP User Guide for further information on submitting annual attestations electronically.

Policies Added to Address Opioid Epidemic

CMS has been very active in the past two years at addressing the opioid epidemic among its Medicare beneficiaries.  The exception to this has largely been the MSA program.

In an effort to address opioids in MSA CMS added the following statement to section 17.1 on MSA administrators:

CMS highly recommends professional administration where a claimant is taking controlled substances that CMS determines are “frequently abused drugs” according to CMS’ Part D Drug Utilization Review (DUR) policy. That policy and supporting information are available on the web at https://cms.gov/Medicare/Prescription-Drug-Coverage/PrescriptionDrugCovContra/RxUtilization.html.

CMS takes this further in Section 17.3 by stating:

CMS expects that WCMSA funds be competently administered in accordance with all Medicare coverage guidelines, including but not limited to CMS’ Part D Drug Utilization Review (DUR) policy. As a result, all WCMSA administration programs should institute Drug Management Programs (DMPs) (as described at https://www.gpo.gov/fdsys/pkg/FR-2018-04-16/pdf/2018-07179.pdf) for claimants at risk for abuse or misuse of “frequently abused drugs.”

While MSA professional administration is recommended for most MSAs, CMS is correct in asserting it is of special value for a claimant utilizing opioid medications.  MSA professional administrators like our partner, Ametros, can readily provide the type of drug management program expected by CMS.  We applaud CMS for implementing these guidelines addressing opioid use in MSAs.

If you have any questions regarding theses MSA updates, please contact Tower’s Chief Compliance Officer, Dan Anders, at (888) 331-4941 or daniel.anders@towermsa.com.

Author Dan Anders, Chief Compliance Officer, Tower MSA Partners. Dan oversees the Medicare Secondary Payer (MSP) compliance program. In this position, he is responsible for ensuring the integrity and quality of the MSA program and other MSP compliance services and products. Based upon his more than a decade of experience in working with employers, insurers, TPAs, attorneys and claimants, Dan provides education and consultation to Tower MSA clients on all aspects of MSP compliance. Contact: ((888) 331-4941 or daniel.anders@towermsa.com

When is the right time to get a Medicare Set-Aside? What medical information is needed? And what can you do to expedite the CMS approval process?

These questions plague any organization trying to settle workers’ compensation claims with injured workers who are or soon will be eligible for Medicare. But understanding when, how and why MSAs are most appropriate allows payers to work proactively with an MSA vendor to reach settlements that are in the best interests of all parties involved.

Anne Alabach, the Workers’ Compensation Department Manager of CPC Logistics, joins Daniel Anders, Chief Compliance Officer at Tower MSA Partners to discuss Achieving Great Outcomes with Your MSA Vendor during the National Workers’ Compensation and Disability Conference® & Expo next month at Mandalay Bay Resort in Las Vegas.

The session will focus on the key indicators to determine success or need for improvement, ways to leverage partner relationships to drive down unneeded MSA costs, and variables that can significantly affect the amounts of MSAs as well as approval times from the Centers for Medicare and Medicare Services (CMS).

Prime Variables

There are a variety of factors that go into developing an MSA. There is not necessarily a ‘right’ or ‘wrong’ amount. What’s important is that the injured worker has enough money to pay for his injury-related medical expenses throughout his life, and the payer is not incurring irrelevant and/or unnecessary costs.

In addition to meeting the threshold for needing an MSA, injured workers should be at maximum medical improvement before one is even considered. An employee who’s about to undergo surgery or a change in medications is not at the point where an MSA should be developed.

Instead, it is most appropriate when the worker’s condition has stabilized.

The variables that should be considered to achieve the most suitable MSA include:

1. Time
2. Documentation
3. Legal
4. Medical
5. CMS MSA Review

Timing of the MSA

Time is of the essence — unless it’s not the right time for an MSA. As described above, prior to MMI is the wrong time to establish an MSA. Changes in treatment or services will undoubtedly mean new medications or procedures will be needed, at least in the short term. The MSA should, instead, be developed when there is a reasonably strong chance the person’s medical requirements won’t vary much going forward. CMS’ MSA review program is actually designed for the injured worker who is already at MMI.

However, MMI does not necessarily indicate all medications and other medical needs are appropriate; far from it. For example, medical records for the injured worker may include a medication that was prescribed just one time, months or years ago. It is not uncommon to see medications included in the MSA that the injured worker doesn’t even remember taking.

Uncovering those types of issues is invaluable in reducing unnecessary costs from the MSA. Talking with the MSA vendor about the injured worker’s current situation may reveal clinical interventions that place the case in a more favorable position.

Also, there may be case-specific recommendations based on jurisdictional issues and opportunities that would change the MSA amount. Working with a qualified MSA vendor can lead to major changes in MSA costs.

The Right Documents

Workers’ compensation stakeholders are often frustrated by delays in the CMS approval process. While some of the blame may fall on the agency, it is often the result of insufficient or inconsistent information provided. “An MSA is only as good as the information it is based upon,” according to Anders. Failing to give accurate and complete information may result in letters from CMS and errors in the MSA amount.

“Put yourself in CMS’ shoes,” Anders advised. That means to obtain and provide recent treatment records, or an explanation as to why those documents do not exist. Also, contradictory recommendations need to be corrected. The MSA vendor can ensure the right documentation is provided and is properly filled out.

Legal & Medical Issues

There may be legal justification to exclude or limit medical care in the MSA. Working closely with the MSA vendor can identify those issues.

Physician peer review, clinical oversight, and physician follow-up are the types of interventions that are critical in creating MSAs. Every aspect of the injured worker’s future medical needs must be explored, by obtaining and analyzing his past medical care. Inappropriate care that may be huge cost drivers should be singled out and eliminated where possible, while still ensuring the injured worker’s care is optimized.

Date of injury, accepted and denied dates of injury and body parts, compensable injuries, & diagnosis codes are just a few of the many things that must be considered.

CMS Review

Gaining CMS approval for the MSA, while not required by law, is often a best practice. The outcomes of these reviews are largely predictable — once the process is well understood.

Correctly following the guidelines in the CMS WCMSA Reference Guide, using the correct pricing in fee schedules and recognizing statutory limitations are a few of the factors that can lead to CMS approval.

Certain metrics identified in the MSA preparation and submission process can allow reverse engineering to correctly allocate the MSA and identify obstacles to settlement. An experienced MSA vendor can help pinpoint and analyze metrics to get CMS approval as quickly as possible.

Conclusion

Creating an MSA can be tedious, painstaking work, especially for those whose jobs are not solely focused on them. Those MSAs that gain quicker approval from CMS and are properly funded are developed by payers working in conjunction with MSA vendor partners who have the skills to carefully look at a myriad of factors that impact the injured worker and his medical needs.

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 the founder & lead trainer of Amaxx Workers’ Comp Training Center.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

The famed University of Alabama head coach, Paul “Bear” Bryant said, “when you make a mistake, there are only three things you should ever do about it: admit it, learn from it, and don’t repeat it.”  These wise words are particularly applicable to termination of Ongoing Responsibility for Medicals (ORM) in the Medicare Section 111 Mandatory Insurer Reporting process.  Failure to properly report ORM termination can yield unnecessary Medicare conditional payment demands, costing time and expense to resolve.  When such an error is made, admit it to CMS, correct it, and learn from the experience so it is not repeated.

Background on ORM Reporting

Since October 5, 2015, the CRC has had responsibility for the recovery of conditional payments where the insurer or employer (including self-insured entities) is the identified debtor, known in CMS terms as the “applicable plan.” The CRC learns of opportunities to recover through the Section 111 Mandatory Insurer Reporting process. In other words, the applicable plan’s reporting is the catalyst for Medicare conditional payment recovery.

The mandatory reporting provisions of the Medicare Secondary Payer Act require the applicable plan to report to Medicare in three instances – the acceptance of ORM, the termination of ORM and issuance of a Total Payment Obligation to the Claimant (TPOC), settlement judgment, award or other payment.

ORM Termination Key to Cutting Off Liability to Medicare

Once ORM is accepted, CMS claims the right to recover against the applicable plan through the date of ORM termination. That means CRC’s recovery efforts may happen years after the ORM was first reported. Further, if the applicable plan fails to terminate ORM when appropriate, then the plan may receive CRC repayment demands for time periods in which it has no liability to pay for medical treatment.

Accordingly, terminating ORM when appropriate is vital to cutting off liability to Medicare.  An applicable plan may terminate ORM through the Section 111 Reporting process under the following situations:

• Settlement with a release of medicals
• No-fault policy limit reached
• Complete denial of the claim
• Statute of limitations has run, or medical benefits have otherwise been exhausted pursuant to state law
• Judicial determination after a hearing on the merits finds no liability
• Signed statement from the injured individual’s treating physician that the injured party will require no further medical items or services associated with the claim related injuries.

Providing CMS with the ORM termination date gives a bookend to recovery by the CRC. If no termination date is provided, then CRC assumes the applicable plan remains liable for injury-related payments indefinitely.

Unfortunately, workers’ compensation claims systems do not always prompt the submitter when a settlement amount is entered to confirm whether ORM is also being terminated.  As a result, the TPOC amount and date are reported to CMS, ORM remains at a “Y,” and the ORM termination date is left blank.  This not treated as an error when CMS processes the submission as CMS allows for multiple TPOC amounts.

Consequently, unreported ORM termination dates can continue for years, and the RRE may only become aware of the oversight only when a conditional payment notice is received for the previously settled claim.

Case Study (provided by Tower MSA)

Tower’s client received a Medicare Conditional Payment Notice and then a demand from the CRC in the amount of $125,554.  A review of the demand revealed many of the charges related to the injury which would typically present a challenge to requesting their removal from the demand.  However, all the dates of service itemized in the demand were after the settlement date of 8/5/2014.

Upon further investigation it was learned that while a TPOC or settlement date of 8/5/2014 had been reported, ORM termination had not (Tower was not the Section 111 reporting agent for this client).  Consequently, the CRC assumed that the primary plan was still accepting medical on the claim and asserted a demand for recovery of conditional payments.

Our client updated their Section 111 report with the correct termination date, and Tower was able to obtain CRC’s agreement to withdraw the demand.

In the end, our client was fortunately not held liable for repayment of $125,554 to Medicare. Nonetheless, the error of not reporting ORM termination concurrently with TPOC took several months to resolve.

Key Takeaway: Training, quality assurance and a reliable reporting agent are critical to avoiding ORM reporting errors.

• Train Adjusters on ORM Reporting: If an adjuster is responsible for inserting the data required for ORM reporting, then they require training as to when ORM acceptance and termination should be reported and how to determine the appropriate diagnosis codes to report.  Significantly, anytime a TPOC (settlement) is reported, the adjuster should determine if medicals are closed as part of the settlement and whether the ORM termination date should also be reported.

• Effective Quality Assurance of ORM Reporting: Even with training, errors will occur. Additional resources placed into quality assurance of ORM reporting, such as double checking claims for proper ORM termination and appropriate diagnosis code choices avoids the expenditure of additional resources at a later date to correct errors in reporting and address unnecessary recovery demands from the CRC. If you are an employer or carrier relying upon a TPA to report, it is especially important to have a QA process in place to check the data entered by the TPA.

• Ensure Reporting Platform is Accurately Reporting: Section 111 Reporting is electronically based and requires a data exchange with Medicare. Errors can and will occur in this data exchange. Ensure you have a trusted and reliable reporting agent, like Tower, who will not only identify CMS submission errors, but also capture issues like a missing ORM termination date, and work with you to have them corrected prior to reporting to Medicare.

For more information on Medicare Set Asides (MSAs) and conditional payments, check out the webinar “Everything you ever wanted to know about conditional payments but were afraid to ask” on Wednesday, October 23rd at 2:00 pm ET. 

Author Dan Anders, Chief Compliance Officer, Tower MSA Partners. Dan oversees the Medicare Secondary Payer (MSP) compliance program. In this position, he is responsible for ensuring the integrity and quality of the MSA program and other MSP compliance services and products. Based upon his more than a decade of experience in working with employers, insurers, TPAs, attorneys and claimants, Dan provides education and consultation to Tower MSA clients on all aspects of MSP compliance. Contact: (888) 331-4941 or daniel.anders@towermsa.com

Among the biggest fears of many people you may know are heights, snakes — and MSAs. Workers’ compensation stakeholders often want to avoid the very idea of Medicare Set-Asides.  Among their concerns are

• Fees for MSA preparation
• MSA professional administration
• Cost of the MSA
• Requirements to obtain additional medical documentation
• Time involved
• Submitting the MSA to the Centers for Medicare and Medicaid Services
• Failed settlements due to rejected MSAs

For injured workers, their concerns about MSAs may be the biggest thing keeping them from settling their claims.  The fear of running out of money too soon is often stronger than their dislike of the workers’ compensation system. Knowing they will have to navigate their own healthcare with no support from adjusters and/or case managers can also generate concerns. Finally, there is the uncomfortable prospect of having to administer their own MSA funds, or turning that task over to someone else

With so many parties apprehensive about MSAs, it’s no wonder many workers’ compensation claims go unsettled for years.

On Aug. 14, a panel of experts will discuss the fear of MSAs and how to overcome them to allow settlements to move forward. The session, Allaying the MSA Fear at the Time of Settlement, takes place during the 74^th annual Workers’ Compensation Educational Conference (WCI), Aug. 11 – 14 at the Orlando World Center Marriott.  I’ll have the pleasure of moderating the session.

With expertise in MSAs, structured settlements, and professional administration, the speakers include:

• Kris Sallee, Claims Manager-Eastern Region, American Airlines
• Daniel Anders, Chief Compliance Officer, Tower MSA Partners
• Marques Torbert, Chief Executive Officer, Ametros
• Joe Bornstein, Structured Settlement Consultant, Arcadia Settlements Group

Using real case studies, the panelists will demonstrate how to approach settlements logistically by using an intervention-driven method to develop MSA allocation, professional administration to protect MSA dollars and support the injured party after the settlement, and a structured settlement to extend the dollars over the person’s lifetime.

The speakers will provide practical solutions to ‘MSA fear,’ and show how using each type of expert creates a synergy that allows for a smooth settlement process when an MSA is involved. They will also address the risks of not submitting an MSA for CMS review. And they will take questions from attendees.

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 the founder & lead trainer of Amaxx Workers’ Comp Training Center .

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Medicare Set-Asides are a pain-in-the-neck nightmare for many workers’ compensation stakeholders. They are expensive, complicated, and seemingly fraught with landmines. One misstep could cost a bundle for you and anyone else involved.

Concerns over MSAs result in a plethora of workers’ compensation claims left open – often years after they could have and should have been closed. Payers end up spending far more for ongoing medical than would have been allocated in an MSA, had the case been settled long ago.

But there is good news! MSAs don’t have to be ridiculously expensive or complex. Yes, they need to be carefully managed, and they need to be overseen by someone with a deep understanding of the intricacies of the Medicare Secondary Payer Act and the Centers for Medicare and Medicaid Services’ processes. Employers, payers, and others who have a basic insight into MSAs can approach claims settlement realistically, getting long-term claims off their books and helping injured workers to be in the best position to move forward with their lives.

A major employer and an MSA expert will take a deep dive into the issue during the 74^th annual Workers’ Compensation Educational Conference (WCI), Aug. 11 – 14 at the Orlando World Center Marriott. Their focus will be on ways to measure and manage MSA costs. The session, Optimizing Settlement Outcomes by Measuring and Managing MSA Costs takes place Wed., Aug. 14, at 10:00 a.m. I’ll have the pleasure of moderating the session.

Measuring

The first step in assuring accurate future medical costs is to know what is in them. For example, do you know:

• How many of your MSAs contain prescription drugs, the most commonly cited reason for high MSA costs?
• How many contain prescription medications?
• Your average CMS approved MSA amount?
• Your trend lines year over year for your MSA program?

Attorney Dan Anders, the chief compliance officer for Tower MSA Partners, and Kris Sallee, claims manager-Eastern Region for American Airlines will provide metrics that will help you determine your MSA program success. Anders will show national standards, while Sallee will offer her company’s metrics to better understand how to measure your own program. Most importantly, the speakers will explain what the metrics mean and how they can be used to improve your MSA program.

Cost Management

Once the metrics are understood, it’s time to get down to the business of actually managing the costs of an MSA. The same types of best practices used for handling claims also come into play when developing MSAs, such as clinical interventions. For example, reducing unnecessary treatments and medications during the claims handling process will reduce the cost of the MSA.

Certain treatments, such as spinal cord stimulators and revision surgeries are most likely to increase MSA costs – and are often unnecessary. Likewise, certain medications may no longer be needed for the injured worker. Or there may be instances where a generic medication can be substituted for a brand name, either currently or in the near-term future when a patent for a particular medication expires.

The speakers will show attendees how to draft an MSA with an eye toward cost and frequency, as well as identifying opportunities to limit the MSA before sending it to CMS. Submitting the MSA can be tricky, and the panelists will address the necessary steps, especially the re-review process, when a dispute can be raised.

Finally, the speakers will allocate time for questions about all things MSA.

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: http://blog.reduceyourworkerscomp.com/

©2019 Amaxx LLC. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.