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.

Developing a Medicare Set-Aside is not only a time-consuming and arduous process, but can also be unnecessarily expensive. There are many instances where tremendous sums of money are included in an MSA just because stakeholders were not diligent in analyzing what was included.

A case in point was a recent situation in which a medication the injured worker had taken only one time was set to be part of his lifetime medications in the MSA. Had this seemingly simple oversight not been flagged, it would have driven up the cost of the MSA by hundreds of thousands of dollars!

We hear all too often about injured workers who, unfortunately, fall through the cracks in the workers’ compensation system and are not appropriately cared for. While these represent only a small minority of cases, they generate headlines. Equally disturbing are stories of injured workers who’ve settled their cases and soon after find themselves out of money with no hope of paying for their future medical expenses, let alone moving on with their lives.

The goal of developing an MSA is to identify as accurately as possible the total cost that will be incurred during the injured worker’s life. The amount needs to include all expenses related only to the specific injury, as well as other treatments that may be needed later on.

Either party – injured worker or employer/payer – can wind up on the losing end of a settlement if it is not done correctly. This is why it is so important for all parties to carefully review the medications, procedures, and costs involved before signing off on an MSA.

Case Study (Provided by Tower MSA Partners): $270,917 in Savings from Physician Follow-up

An injured worker had been diagnosed with a variety of conditions stemming from a workplace injury, including depression, anxiety, complex regional pain syndrome and bilateral hand/arm pain with radiation to his right shoulder and neck. He was ready to settle his claim and leave the workers’ compensation system.

Among the six RXs included in the MSA projection was Nucynta 50mg. This opioid is meant to be a short-term treatment for moderate to severe pain. Not only is it highly addictive, but also extremely expensive. It comprised $245,721 of the MSA amount.

The worker had, understandably been treated by several physicians in the year before he agreed to settle. But the medical records were less than complete.

Total MSA Exposure — $326,925.

Solution:

With so many physicians involved, Tower’s physician follow-up team first obtained statements from each of the six providers involved in the worker’s treatment. They confirmed the last dates of services and whether medications had been continued or not. If they were, the name of the drug, dosage, and frequency for each was requested.

The physician who had prescribed Nucynta confirmed it was a one-time fill that was subsequently discontinued. The team identified several additional discrepancies in the statements from the physicians and had the physicians document the medical records with a revised medication list that reflected what the injured worker was actually taking and expected to need going forward.

Results:

Removing Nucynta from the medication list reduced the projected amount of the MSA by more than $245,000. An additional $81, 204 was also eliminated, based on the physicians’ statements

The MSA went from $326,925 to $56,008 — a savings of $270,917 and, with no negative impact on the injured worker!

Conclusion:

While the particular medication involved in this case was on the high-end of errors, the situation is all too familiar. Stakeholders often take information about current and future medications and treatments at face value, without delving into what is behind the numbers.

This case is typical in that a variety of physicians were involved, their records in many cases were incomplete, and there were medications included that had no bearing on the injured worker’s current, let alone future status.

Creating accurate MSAs takes time and skill. Those who undertake them need to ask questions and obtain all relevant information in order to come up with an amount that is fair to all sides.

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/

©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.

A thoughtful and critical review of your Medicare Secondary Payer (MSP) compliance program is a great exercise to perform annually.  Consider these questions and metrics:

Questions & Metrics to Assess Work Comp MSA Cost Drivers:

• What percentage of your Medicare Set-Aside (MSA) submissions are accepted?
• Can you identify the biggest cost drivers in your MSAs?
• What percentage of your CMS approved MSAs include opioids?
• What percentage of your approved MSAs include any pharmaceuticals?
• What is the average cost of prescription drugs on MSAs?
• Do you understand why CMS approves/denies MSA proposals?
• Are you overfunding/underfunding MSAs? How do you know?
• Do you know what documentation you need for approval of changes in medical treatment or pharmaceuticals?

If you were not able to confidently answer the questions above it might be time to make some changes to your MSP compliance program. Some claims and risk managers put together a program, let it run and hope for the best. Instead, using data analytics and continuously tracking outcomes and other performance indicators can significantly improve the process of preparing and submitting MSAs to the Centers for Medicare and Medicaid Services (CMS) — especially, where pharmaceuticals are concerned.

MSP Through the Years

It’s been approximately 15 years since the government ramped up its efforts to ensure Medicare doesn’t pay for medical services that should be funded by some other entity, including the workers’ compensation system.  At the time, organizations scrambled for ways to develop MSAs that would be approved by CMS.

The process for CMS approvals has evolved over the years. What was a fairly complicated system, to begin with, has turned into an extremely intricate series of steps that can befuddle even the most competent people in the industry – unless they have the benefit of highly advanced technological solutions combined with strong expertise.

For example, in addition to new regulations from CMS, state statutes and fee schedules are also constantly changing. Failing to keep tabs on them can make the process time consuming, costly and fraught with peril.

In the past 18 months, CMS has taken steps to intensify its efforts further. The agency has put millions of dollars into a new contractor and greatly updated its technology, making the process of identifying mistakes that much quicker and easier. It means anyone trying to stay in compliance with Medicare also needs to improve and upgrade their systems.

What the Metrics Can Tell Us

Most workers’ compensation payers would agree that pharmacy is the biggest cost driver for their MSAs. However, few know the answers to these key metrics:

• What is your current pharmacy spend on MSAs?
• What percentage of your CMS-approved MSAs include opioids?
• What percentage of MSAs are approved with or without drugs?
• What is the average cost of prescription drugs on your MSAs?

With medications comprising such a tremendous portion of MSA costs, it’s vital to have a clear understanding of the issue. This can only be accomplished by focusing on the metrics. By analyzing the data on opioids as well as other pharmaceuticals in terms of your MSAs that are approved, you can then begin to fully manage these costs.

Optimizing MSA Outcomes

Whether working with an MSA vendor or doing Medicare compliance on your own, several strategies are a must for success.

1. Identify metrics that drive the results you want to see, particularly where medications are concerned.
2. Measure your performance and modify processes, workflow, and technology to improve it. For example, look at the percentage of your MSAs with ongoing medical to see how much you have allocated for opioids. If the answer is anything more than zero, go back to the drawing board.
3. Examine current CMS performance and the most recent state statutes and fee schedules against CMS’s review methodology as defined in the most recent Workers’ Compensation MSA Reference Guide. If/when there are changes, update your system immediately. Once developed, this should be a simple verification, audit and sign-off process.
4. Analyze every CMS response against your internal best practices in MSA allocation, with a focus on pharmaceuticals and opioids. You want to know how you are performing against CMS in such areas as pricing, frequency and life expectancy.
5. Leverage Section 111 data to improve the CMS approval rate of MSAs.

To truly effect change in your Medicare compliance program requires examining certain metrics and taking steps to manage them best. For example:

6. What is the number of Medicare conditional payment searches and investigations initiated and the success rates for disputes and appeals, including dollars saved?
7. What type of clinical interventions have been initiated, what is their success rate and the average dollar amount saved because of them? This strategy can save many thousands of dollars per claim. Investigating each claim with an eye toward medical procedures anticipated and/or pharmaceuticals can yield surprising results. You may find, for example, a doctor is prescribing a medication the injured worker no longer takes or has never taken; so removing that drug from the future medical amount is an easy change.
8. What is the percentage of submissions to which CMS has countered with a higher dollar amount? A lower dollar amount? If there is a high percentage of either, you need to understand why there is a trend and how to counteract it.

You want the injured worker to have adequate funds for his lifetime needs related to the injury, but you don’t want to pay unnecessarily high costs. Often the projected expenses are way too high, or the therapy is not within evidence-based medical guidelines.

The best MSA developers can fully assess exposure before the proposal is submitted. They can spot inappropriate or unnecessary treatment and pharmaceuticals AND take steps to curb them such as physician peer-to-peer discussions, for example.

Conclusion

Paying too much for anything does not make sense. But, that’s exactly what happens far too often because many workers’ compensation payers don’t take advantage of advanced technologies in developing MSAs. Using metrics and data analytics and working with an MSA expert can help ensure injured workers get what they need and deserve without payers going overboard.

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/

©2018 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.

No one likes to pay for items that are not their responsibility. This statement is true of the federal government in the workers’ compensation industry as the feds have exerted control over settlements involving injured workers who are or will soon be covered by Medicare.  An entire cottage industry has sprung up comprised of experts who develop Medicare Set-Asides (MSAs) and ensure Medicare’s interests are considered before a workers’ compensation settlement is finalized.

As the Medicare Set-Aside industry has grown and matured in workers’ compensation, a similar approach is now being considered with liability settlements. The law on the books for decades clearly says that Medicare is supposed to be a secondary payer in such settlements. Lately, there have been clear indications the Centers for Medicare and Medicaid Services (CMS) plans to take action on this soon. How it will ultimately shake out is up for debate. In the meantime, payers should at least be aware of what is happening and take steps to prepare.

The Issue

“The extent to which settling parties must consider Medicare’s interests in medicals in a liability settlement continues to be unclear.” Thus begins a new white paper discussing the issue and what can be done. Written and published by Tower MSA Partners, Navigating Through the Fog: Medicare, Future Medicals & Liability Settlements reviews the workers’ compensation experience with CMS, outlines likely scenarios for liability settlements, and provides tips for payers.

Liability insurance coverage protects the policyholder or self-insured entity against claims based on negligence, inappropriate action, or inaction that results in bodily injury or property damage.

Examples include

• Homeowners’ liability insurance
• Automobile liability insurance
• Product liability insurance
• Malpractice liability insurance
• Uninsured motorist liability insurance
• Underinsured motorist liability insurance

Medicare beneficiaries must notify Medicare when a liability claim is made against a party with liability insurance and the liability carrier must report to Medicare when it settles a claim with a Medicare beneficiary. When there is a settlement, Medicare expects reimbursement for any payments it covered that should have been paid out of the settlement.

The settlement becomes more complicated when there are future medical costs for the specific injury. If Medicare is billed, it may seek reimbursement. In those situations, Medicare’s interests should be taken into account, and a liability MSA may be advisable.

Medicare Has Not Yet Established Framework for Liability MSAs

Unlike the process for workers’ compensation MSAs, Medicare has not established a framework for reviewing LMSAs or provided any guidance on the issue. Instead, any CMS reviews for proposed LMSAs that do occur are done on a case-by-case basis and only by some regional offices.

The good news is that, so far at least, there are no known incidents of CMS denying payment or seeking reimbursement for injury-related medical care after a liability settlement. Tower MSA Partners anticipates action from CMS within the next two years. When that happens, according to the white paper, CMS will need to address issues including:

• Review thresholds
• Allocation of the MSA based upon a compromise formula
• Documentation required to submit to CMS with an LMSA proposal
• Whether the LMSA review will occur pre- or post-settlement
• Timeline for LMSA policy implementation
• Multiple defendants and mass tort settlements
• Pricing of medical in an LMSA (usual and customary vs. Medicare rates)

Other factors that come into play with liability settlements include policy limits, statutory tort caps, negligence rules, pre-existing conditions, case law and other issues that may result in a settlement for less than the full value of the claim.

What to Do

With things up in the air regarding liability settlements, one question is whether a claim for reimbursement could extend to the claimant and the primary plan, as well as the claimant’s attorney. Right now, it is uncertain.

Despite the vagueness of the issue, Towers suggests payers take the following actions to protect themselves and claimants.

1. Identify whether the claimant is a Medicare beneficiary or has a reasonable expectation of Medicare eligibility within 30 months.
2. If Medicare eligibility is or soon will come into play, evaluate the necessity of future injury-related medical care. Is future medical care claimed in the settlement demand or alleged in the pleadings?
3. If there is a necessity of future injury-related medical care, will this burden likely be shifted to Medicare? For example, does the claimant have a source other than Medicare to pay future injury-related medical care; e., group health plan, which will likely cover future injury-related medical?
4. If Medicare is the likely source of future injury-related medical care, consider whether there are sufficient settlement funds to allocate a portion to fully fund future medicals. If so, then consider an LMSA as part of the settlement. If there are insufficient funds to fully fund future medicals, then consider an apportionment of the future medical allocation in relation to other damages allocated in the settlement.
5. Document the file and settlement/release in regard to steps taken to consider Medicare’s interest:

– If an LMSA or other type of allocation for future medical has been included in the settlement, ensure the plaintiff is aware of his or her responsibilities in utilizing those funds for future medical expenses.

– If the LMSA has been apportioned, document the reasons why such a reduction was taken.

– If no LMSA or allocation for future medical has been included in the settlement, then ensure the plaintiff is aware of the potential implications for future payments by Medicare for injury-related medical care.

– Document why no such allocation has been included in the settlement/release.

6. Besides the future medical considerations, remember as well to investigate and resolve Medicare conditional payments, including payments made through Part C Medicare Advantage Plans.

Conclusion

Medicare may begin denying payment for claims if it determines that payment should have been made through a liability insurance policy or another primary payer. Such a change would likely delay liability settlements. Therefore, it is imperative to work with an experienced settlement planning professional, as failure to comply with MSP provisions can result in severe penalties.

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/

©2018 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.

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:

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/

©2018 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.