Tower MSA Partners Selects Patricia Smith as EVP, Clinical Operations

February 28, 2017

Patricia Smith, RN, BSN, MSCC, CDMS, CLCP has joined Tower MSA Partners as executive vice president of Clinical Operations. In this role, Smith reviews and monitors clinical trends related to Medicare coverage criteria within the confines of Medicare Secondary Payer compliance, develops clinical strategies to support company’s pre- and post-Medicare Set-Aside intervention workflow and manages all clinical and pharmaceutical oversight teams.

Most recently Smith served as senior vice president of Clinical Solutions Services for Examworks Clinical Solutions. In previous positions with MedAllocators, Concentra Integrated Services, Coventry Workers Compensation, and NuQuest Resources, she produced Medicare Set-Asides, Medical Cost Projections, and Life Care Plans.

“Pat has been involved with MSP compliance and MSAs in work comp for more than 14 years,” said Tower CEO Rita Wilson. “Her clinical expertise, track record of innovation and results-driven management philosophy make her a perfect fit to lead Tower’s clinically driven model to optimize the MSA and settlement.”

A graduate of the University of Maine with a bachelor’s of science degree in nursing, Smith holds several professional credentials. She is a Medicare Set Aside Consultant Certified (MSCC), a Certified Disability Management Specialist (CDMS), a Certified Life Care Planner (CLCP), and a legal nurse consultant. She is also a member of the National Alliance of Medicare Set Aside Professionals and International Association of Rehabilitation Professionals.

Tower MSA Partners CEO, Rita Wilson, Elected NAMSAP Treasurer

February 15, 2017

Tower MSA Partners CEO, Rita Wilson, who is a board member of the National Alliance of Medicare Set-Aside Professionals (NAMSAP), has been elected Treasurer of the organization. Full details on her election as well as the election of other board members to leadership positions is detailed in the following NAMSAP new release:

ELMHURST, Ill.–(February 2, 2017)–The board of directors of the National Alliance for Medicare Set-Aside Professionals has elected the following officers for 2017:

  • President: Shawn Deane, JD, MEd, MSCC, CMSP – assistant vice president of Product Development of ISO Claims Partners
  • Vice President: Greg Gitter, CMSP – president of Legacy Claims Solutions, Inc. (a Gitter Company)
  • Treasurer: Rita M. Wilson – CEO of Tower MSA Partners
  • Secretary: Christine Melancon, RN, CCM, MSCC, CNLCP, CMSP – vice president of Operations for EZ-MSA Services

“I am honored to be selected to represent NAMSAP as president,” said Deane. “We will build upon initiatives launched by last year’s outstanding President, Gary Patureau, and forge new opportunities to improve Medicare Secondary Payer services.”

Addressing the opioid epidemic remains a top priority, and NAMSAP will continue its efforts to persuade the Centers for Medicare and Medicaid Services (CMS) to follow its own Part D guidelines when reviewing and approving Workers’ Compensation Medicare Set-Asides (WCMSAs). NAMSAP will also monitor CMS’ selection of a new Workers’ Compensation Review Contractor and the evolution of the Commercial Recovery Center.

“Promoting payer participation in NAMSAP is another high priority,” Deane added. “We are delighted to add Beth Hostetler with Albertsons and Safeway to our board of directors and look forward to better representing the MSP goals for both payers and submitters.”

Other new board members are Amy Bilton with Nyhan Bambrick Kinzie & Lowry and Monica Williams, MWC Associates.

About NAMSAP

The National Alliance of Medicare Set-Aside Professionals (NAMSAP) is the only non-profit association exclusively addressing the issues and challenges of the Medicare Secondary Payer Statute and its impact on workers’ compensation and liability settlements. Through the voluntary efforts of our members, NAMSAP is a forum for the exchange of ideas and is a leading resource for information and news in this constantly evolving area of practice. The collective knowledge of our members and NAMSAP’s resources will provide attorneys, nurses, settlement planners, claims professionals, and others with the ingredients essential to their success.

Successful Legacy Claim Settlement Initiatives Featured in WorkCompWire Article

As part of its Leaders Speak series, WorkCompWire recently published a two-part article by Tower MSA Partners’ Chief Compliance Officer, Dan Anders, describing how clinically driven settlement initiatives on legacy or “old dog” workers’ compensation claims yield significant cost savings and become the foundation for best practices on new workers’ compensation claims.

Part one of the article, How Old Dogs Can Learn New Tricks, details how successful settlement initiatives include a clinical partner who identifies and analyzes legacy claim cost drivers and then works with the employer or carrier to separate claims into those that can immediately move to settlement negotiation, those that may settle after clinical or legal intervention, and those that are unlikely to benefit from intervention and thus cannot settle. The article explains the importance of connecting the appropriate clinical intervention to the legacy claim so as to drive a successful outcome and claim closure.

Part two of the article, New Tricks for New Claims, focuses on how the lessons learned in resolving legacy claims can be applied to new or ongoing claims and as a result produce significant medical and indemnity cost savings. Highlighted in the article is a large employer whose legacy claim settlement initiative yielded significant reduction in legacy claim costs and continues to save the employer ongoing claim costs as now a new standard for claims handling.

We encourage you to review the articles and contact Tower MSA Partners to discuss how we can drive case closure on your legacy or old and complex workers’ compensation claims.

Dan Anders may be contacted at daniel.anders@towermsa.com or (847) 946-2880.

Federal Court Holds Against Medicare Practice of Over-Inclusive Reimbursement Demands

February 13, 2017

The California Insurance Guarantee Association (CIGA) has prevailed in its lawsuit (Cali. Ins. Guar. Ass’n v. Burwell, No. 2:15-cv-01113-ODW (FFMx), 2017 U.S. Dist. Ct. LEXIS 1681) against the Centers for Medicare and Medicaid Service (CMS) challenging the practice of over-inclusive reimbursement demands by CMS. As a consequence of this ruling from the U.S. District Court for the Central District of California, claimants and employers, have judicial support to dispute charges which contain mixed diagnosis codes, some related to the workers’ compensation injury and some unrelated, in CMS’s conditional payment demands.

A summary of CIGA’s challenge to CMS, CMS’s response to the claim and the Court’s decision is detailed below with a discussion on practical implications of the decision.

CIGA’s Claim Against Medicare

CIGA claimed that CMS’s practice of seeking reimbursement for the full amount of a medical charge despite the charge including mixed diagnosis codes, some related to the workers’ compensation injury and some unrelated, goes beyond CMS’s authority under the Medicare Secondary Payer Act.

By way of background, medical providers include ICD-10 diagnosis codes within billing records that are supposedly associated with the treatment provided. However, it is commonly known that medical providers, especially hospitals, may add any and all diagnoses for which a claimant reports a medical condition, even if such condition is not the subject of the treatment on the bill. For example, a claimant who has a low back injury and seeks treatment at a hospital for a cardiac condition may report on an intake form that he has ongoing low back pain. The hospital may list a low back diagnosis code on the medical bill even though the incurred medical treatment is solely related to the cardiac condition. This is not to say that there may also be situations where actual treatment was received for the work-related injury, but, even then, it may represent only a portion of the overall charge.

As evidence to support its claim, CIGA presented three examples of recovery demands with mixed diagnosis codes. In one demand the Medicare conditional payment charge included a diagnosis code connected to the work-related back and hip injury, but other diagnosis codes relating to diabetes, insulin use and bereavement. In these cases, CMS issued a formal demand letter seeking recovery for the complete charge for both related and unrelated conditions. CIGA disputed on the basis that the charges “did not fall ‘within the coverage of an insurance policy of the insolvent insurer’” under California law.

CMS’s Response

The Court rejected all of CMS defenses as detailed below.

CMS withdrawing the demand is not a sufficient basis to dismiss the case

At some point following the initiation of CIGA’s lawsuit CMS “recalculated” its demands resulting in CMS effectively withdrawing the demands that were the subject of this litigation. CMS claimed that as the demands were withdrawn the case should be dismissed. The court denied the dismissal noting “Indeed, given the timing of the withdrawals (i.e., immediately after a hearing in which the Court made clear that CMS’s practice would not withstand scrutiny), it seems obvious that this is simply a strategic maneuver designed to head off an adverse decision so that CMS can continue its practice in the future.”

CIGA identifying unrelated diagnosis codes is a sufficient basis to shift the burden to Medicare

CMS disputed CIGA’s assertion that identifying the non-work related diagnosis codes is sufficient to shift the burden to Medicare to prove otherwise. The Court disagreed and held that it is sufficient to shift the burden to Medicare to prover otherwise, and further, that CMS never challenged CIGA’s claims that the diagnosis codes were unrelated.

CMS’s claim that the term “item and service” refers to the charge and not the treatment is unsupported

The Medicare Secondary Payer Act provides “a primary plan . . . shall reimburse [Medicare] for any payment made . . . with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.” CMS regulations (42 CFR 1003.101) further define item or service “Any item, device, medical supply or service provided to a patient which is listed in an itemized claim for program payment or a request for payment . . . .”

CMS asserted the definition of “item or service” for which they are able to recover under their regulations refers to whatever (and how many) medical treatment(s) a provider lumps into a single charge. Not surprisingly, the Court found nothing under the statue nor the intent of Congress in writing the MSP Act to substantiate that “item or service” refers to the listed charge from the medical provider, rather than one medical treatment whether billed as a group with other treatments or listed singly.

CMS is bound by state law in determining whether the WC employer or carrier has responsibility to reimburse Medicare

CMS next argued that it is not bound by state law as state law is preempted under the MSP Act (Preemption refers to the principle that between federal and state law federal law trumps state law). The Court cited with approval a prior federal appellate court decision, Caldera vs. Ins. Co. of the State of Pa. 716 F.3d 861 (5th Cir. 2013) which addressed the question of whether CMS’s ability to recover is limited in anyway by state law. In Caldera the Court found “responsibility to make payment with respect to an item or service is generally a matter of state law.” Accepting then that CMS is held to state law in its ability to recovery, the judge in the present matter went on to cite several California state court decisions finding that a compensation carrier is not responsible for making payment on treatment unrelated to the workers’ compensation injury.

CMS is not entitled to deference in its interpretation of the MSP Act and regulations

The court rejected CMS claim of deference to its interpretation of the MSP Act and regulations since the Court found such an interpretation of CMS’s regulations actually supports CIGA and, further, its arguments conflict with CMS’s own MSP Manual which provides for medical providers to be reimbursed partially by a primary plan and partially by Medicare if work-related medical treatment is provided concurrently with non-work-related treatment.

Court Finds the Real Reason CMS Calculates in this Manner

The Court holds, “At bottom, it is quite clear that the real reason CMS calculates reimbursement demands in the manner that it does is simply because it is too difficult to do otherwise, not because that is what is required (or even permitted) by any statute, regulation, or policy manual.” According to the Court then, CMS must attempt to apportion the charge between covered and non-covered services. It is possible, as the court indicates, that CMS may find apportioning the charge unreasonable. The court further notes that if the charge is apportioned, it takes no position on how CMS should do so in terms of pro rata reimbursement, etc.

Practical Implications of Decision

Whether it is Medicare conditional payment recovery or Workers’ Compensation MSAs, CMS regularly asserts that it is not bound by state law in determining items or service for which it may seek recovery or to be included in the MSA. Further, CMS operates under an assumption that the courts will defer to its interpretation of the MSP Act and relevant regulations. At least in the Medicare conditional payment context, this decision completely refutes such assumptions. This is a well written decision which along with the holding in Caldera (mentioned above), is significant in finding that state law places limits on the extent of MSP conditional payment recovery. We applaud CIGA’s pursuit of this decision.

It should be noted that this is a U.S. District Court decision, not an appellate decision, thus it has limited precedential value for other cases addressing this same issue. Nonetheless, along with the Caldera case, which is an appellate decision, we now have two decisions which limit Medicare recovery. It is unclear at this point whether CMS will appeal the decision to the 9th Circuit Court of Appeals. A decision at that level would provide precedential value for all states within the 9th Circuit and would be on par with the Caldera case which was an appellate decision of the 5th Circuit.

The court does leave a door open for CMS in that CMS can determine whether it is unreasonable to separate a charge between related and unrelated. It is assumed though that CMS would have to provide evidence to support why it cannot reasonably separate the charges.

Tower MSA will utilize this important decision to support disputes of mixed diagnosis code conditional payment charges on behalf of our clients. Whether CMS will agree remains uncertain as this is a lower court decision and the decision itself still gives CMS the ability to determine whether it is reasonable to remove unrelated portions of a charge and how the remaining work-related amount of the charge should be apportioned. Tower MSA will continue to keep you apprised of any developments in this area of Medicare conditional payment recovery.