Proposed Rules on LMSAs and Section 111 Penalties Again Delayed

November 25, 2019

US Capitol dome

Almost a year ago the U.S. Office of Management and Budget posted two rulemaking notices from the Centers for Medicare and Medicaid Services (CMS) entitled Civil Money Penalties and Medicare Secondary Payer Reporting Requirements and Miscellaneous Medicare Secondary Payer Clarifications and Updates.  Per our understanding, the purpose of this rulemaking is to provide proposals for how and when penalties will be imposed in Section 111 Mandatory Insurer Reporting and for a Liability Medicare Set-Aside review process.

When issued in December 2018, both notices indicated the proposed rules would be issued in September 2019.  Subsequent notices moved the date to October 2019 and we now have notices moving the date for issuing the proposed rule on penalties to December 2019 and for rules on LMSAs to February 2020.

Practical Implications

The lesson here is these are not hard and fast dates as they have already been moved twice and we assume may be moved again.  At some point we expect the proposed rules to be issued which will be followed by comment periods (likely a 60-day period each).  CMS will take public comments under review and then issue final rules with effective dates.  As such, we are looking at a rulemaking process that will stretch well into 2020 and possibly into 2021.

For more background on these rules please read our prior article, CMS Rulemaking Notices Provide Possible Timeline on LMSAs and Reporting Penalties.

If you have any questions, please contact Dan Anders at (888) 331.4941 or daniel.anders@towermsa.com.

Tower MSA Partners Engages Vigilant Technology Solutions to Add Another Layer of Data Security

November 13, 2019

Tower MSA Partners logo

DELRAY BEACH, Fla.–As part of its commitment to continually enhance its technology, improve data security and combat cyber threats, Tower MSA Partners, which provides Medicare Secondary Payer services to the workers’ compensation and liability industries, has entered a partnership agreement with Vigilant Technology Solutions. An Ohio-based cybersecurity firm, Vigilant is providing its powerful CyberDNA Managed Network Security Monitoring service.

Read it here

CMS Expands MSA Amended Reviews & Modifies Consents to Release in Updated Reference Guide

November 7, 2019

CMS User Guides for Section 111 Reporting. open book with colored page markers

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.