Get Measurably Better Results with Tower MSA Partners

October 28, 2019

graphic showing list of Tower MSA Partner results

Some employers, carriers and other payers think Medicare Set-Asides (MSAs) are all pretty much the same, a commodity.  A company calculates future medical expenses and sends a report with an allocation to the Centers for Medicare and Medicaid Services (CMS), and there’s not much to be done about it. 

That just isn’t true.  There are many ways to reduce allocation amounts while protecting Medicare and ensuring appropriate care for injured workers.  And, some MSA companies are better than others. 

Tower MSA Partners continuously measures our MSP compliance and MSA performance and uses the data to re-engineer our processes and challenge CMS, when necessary.    

Our data shows 66% of our MSAs have no dollars allocated for pharmacy and 77% have no dollars allocated for opioids.  Keep in mind that these are MSAs that CMS has approved.   

Benchmarking our results against CMS gives us insight in how to draft MSAs that can be easily and quickly approved. A good 74% of the MSAs we submit are approved by CMS – with no counter higher. 

Our Pre-Triage service identifies inappropriate medical and pharmacy treatment and other obstacles to settlement.  The clinical interventions we recommend and deliver dramatically reduce allocation amounts.  We balance care, compliance and cost to optimize our clients’ MSAs, and we were able to achieve cost savings from 61% of the MSAs we produced so far in 2019. 

What are your numbers?  If you’re not seeing numbers like these, visit Booth #2517 and start getting results that are measurably better. 

TowerMSA.com

U.S. Appellate Court Holds Guaranty Fund Not a Primary Plan Under the MSP Act

October 21, 2019

close up of judge's gavel with the scales of justice in the background

In an October 10, 2019 decision from the U.S. Court of Appeals for the Ninth Circuit, the California Insurance Guarantee Association (CIGA) was found not to be a primary plan under the Medicare Secondary Payer (MSP) Act.  The result of this decision, if not reversed on further appeal, is that CIGA would have no responsibility to reimburse Medicare for conditional payments or to allocate funds in a Medicare Set-Aside (MSA) for future medical.  Whether this decision applies to other state guaranty associations or funds depends on whether that state is located within the Ninth Circuit and on the statutory language that established the fund.

Background on CIGA Case

CIGA is a statutorily created association that requires its insurer members to pay premiums, which are then used to discharge an insolvent insurer’s covered claims.  The statute specifically indicates CIGA is a payor of last resort and cannot reimburse state and federal government agencies, including Medicare.

Tower previously reported on CIGA’s suit against Medicare, Federal Court Holds Against Medicare Practice of Over-Inclusive Reimbursement Demands and U.S. District Court Declares CMS Practice of Over-Inclusive Reimbursement Demands to be Unlawful, but Withholds Injunction.  In the lower court, the judge had quickly dismissed CIGA’s argument that it was not a primary plan, subject to the provisions of the MSP Act, by focusing on CIGA’s obligation to pay for workers’ compensation medical benefits for the insolvent insurer.  The judge went on to address the CMS practice of claiming reimbursement for a charge that includes both injury-related and non-injury-related services.  While the District Court for the Central District of California found CMS’s practice unlawful as the state law requires only payment for injury-related charges, the court did not issue an injunction stopping this CMS practice.  

Appeals Court Holds CIGA is Not a Primary Plan

On appeal, the focus shifted back to whether CIGA was a primary plan and thus subject to the MSP Act.  The appellate court indicated the question is not whether CIGA made workers’ compensation payments on a claim from an insolvent insurer, but whether CIGA is a workers’ compensation plan.  The MSP Act, 42 U.S.C. § 1395y(b)(2)(A)(ii), defines entities that are primary plans to Medicare as follows:

payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

The court found CIGA does not fall into any of these categories and instead falls into the category or class of “insolvency insurance” as it is “an insurer of last resort.”  Based upon a review of the MSP Act and its history, the court found that the primary plan provisions do not preempt state law. (Federal preemption means that when federal and state law are in conflict, the federal law is followed rather than the state law).

To argue its position that the state law is preempted, the federal government cited the 1996 decision from the U.S. Court of Appeals, First Circuit, in U.S. v. Rhode Island Insurer’ Insolvency Fund, 80 F.3d 616 (1st Cir. 1996), in which the court found this guaranty fund’s statutory provision requiring claimants to seek recovery from any governmental insurance, e.g., Medicare, before seeking reimbursement from the fund, to be preempted by the MSP Act.

The Ninth Circuit distinguishes its decision by noting the Rhode Island statutory scheme deems the fund to be the new insurer upon insolvency of the old insurer.  In other words, the Rhode Island fund steps into the shoes of the insolvent carrier.  In contrast, the court holds that based on the state statute, CIGA does not become the insurer. Instead, CIGA is only authorized to disburse funds for “covered claims” from the insolvent insurer.  A key distinction for the court.

Practical Implications

This decision is only binding upon the federal courts within the Ninth Circuit, namely Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. To determine whether this decision may apply to guaranty funds in those states, each fund would need to review its statutory language against the California statutory language that was determinative in this case.  For funds located outside the Ninth Circuit, this decision may be persuasive to federal district and circuit courts if asked to rule on the issue.  

CMS has the option to first appeal the decision to the full circuit (called en banc), meaning all judges sitting in the Ninth Circuit would hear the case.  If this is turned down, which is likely, then an appeal can be filed with the U.S. Supreme Court, which may or may not choose to hear the case.

Finally, compliments to CIGA for maintaining this litigation, which has resulted in decisions addressing the extent of Medicare conditional payment recovery and defining whether a guaranty fund is a primary plan under the MSP Act.

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

NWCDC Panel to Feature Tower’s Dan Anders & Anne Alabach of CPC Logistics

October 17, 2019

banner for 2019 tower msa partners webinar details

Tower’s Chief Compliance Officer Dan Anders to present at NWCDC!

You may not realize how much your relationship with your Medicare Set-Aside vendor affects MSA allocation amounts and the time it takes to settle and close a claim. 

Tower’s Chief Compliance Officer Dan Anders and Anne Alabach, Workers’ Compensation Department Manager for CPC Logistics, will share strategies for “Achieving Great Outcomes with your MSA Vendor,” starting at 1:45 p.m. on Nov. 7 at NWCDC.

Attendees will learn how to:

  • Partner with your MSA vendor to drive down costs and reduce turnaround times
  • Identify variables that impact MSA amounts and cause delays in CMS approvals
  • Identify metrics needed to evaluate success or point to needed improvements

Case studies will illustrate the ability of legal and clinical interventions to reduce MSA costs, effectively challenge CMS responses, and offer practical advice for improving your MSA program. Read more at: Tower MSA Partners Dan Anders and CPC Logistics Anne Alabach will present “Achieving Great Outcomes with your MSA Vendor” at NWCDC.

Put the session in your calendar right now & visit us at Booth #2517 to learn how Tower can help you optimize your MSP compliance and MSA programs. 

NWCDC will be held at Mandalay Bay in Las Vegas and more details can be found at https://www.wcconference.com/

Related:

Medicare Set-Aside (MSA) – Addressing cost drivers and barriers to claim closure and smoothing the path to CMS approval and settlement

MSA 2nd Opinions – MSA too high? Get an MSA 2nd Opinion from Tower

CMS Adds Electronic Submission Option for MSA Attestations

October 15, 2019

Red Medicare button on a keyboard to illustrate Medicare conditional payment.

On October 7, 2019, the Centers for Medicare and Medicaid Services (CMS) released an updated Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide (Version 5.9) which adds the capability for both MSA self and professional administrators to electronically submit annual attestations for CMS-approved MSAs.  Previously, the sole option for an MSA administrator was to complete the attestation form and submit to Medicare’s Benefits Coordination & Recovery Center (BCRC) via mail.

Pursuant to CMS rules, once the approved MSA is funded through settlement:

Every year, beginning no later than 30 days after the 1-year anniversary of settlement, the administrator must sign and send a statement that payments from the WCMSA account were made for Medicare-covered medical expenses and Medicare-covered prescription drug expenses related to the work-related injury, illness, or disease.

CMS provides blank attestation letters with the appropriate identification numbers in each CMS WCMSA approval letter for this very use.

Through this new electronic option, MSA self-administrators or those representing MSA self-administrators may login through MyMedicare.gov and by clicking the WCMSA Attestation Information button, may submit a new attestation and view past attestations. 

For professional administrators, they may set up an account in the WCMSAP and manage their authorized cases within the portal.  Per CMS, professional administrators’ access will allow them to “submit account transactions via input file submissions and download response files online, allowing them to administer and keep detailed records for a WCMSA account without the need for submitting an attestation.”

Importantly, final settlement documents must be submitted to CMS, including a professional administration agreement if the MSA is to be professionally administered, before the electronic attestation submission option may be used. 

CMS Webinars to Highlight Enhancements

CMS has scheduled two webinars to highlight the new WCMSA Electronic Attestation Enhancements.  The first webinar, to be held on October 30, 2019 at 1:00 PM ET, will be for Medicare beneficiaries and their representatives.  The second webinar, to be held on November 6, 2019 at 1:00 PM ET, will be for Professional Administrators. 

Practical Implications

Providing for electronic submission of annual attestations will benefit both CMS and MSA administrators as it will allow for better and faster coordination of benefits.  This coordination of benefits ensures that when MSA funds exhaust, either temporarily or permanently,  Medicare payment for the Medicare beneficiary’s injury-related bills will be triggered. 

Tower offers MSA professional administration services through our partner, Ametros.  If you have any questions regarding MSA administration or this enhancement, please contact Dan Anders at daniel.anders@towermsa.com or (888) 331-4941.