Tower’s Medicare Secondary Payer (MSP) Compliance Countdown

December 19, 2019

clock turning from 2019 to 2020 and reading "Happy New Year"

As we come to the end of 2019, put on your party hats, toot your horns and clink your champagne glasses, as we introduce Tower’s MSP Compliance Countdown.  The MSP Compliance Countdown provides a quick summary of, in our opinion, the top ten Medicare Secondary Payer compliance stories in 2019.  So, start dropping the MSP compliance ball and here we go: 

10Electronic Payment Option Added to MSPRP – On April 1, 2019, the Centers for Medicare and Medicaid Services (CMS) added an option to the Medicare Secondary Payer Recovery Portal (MSPRP) allowing for reimbursement of Medicare conditional payment demands by direct payment from a checking or savings account, debit card or PayPal.  While convenient for Medicare beneficiaries, insurer and employer payers say this does not work with their payment processes. It is our understanding that CMS may consider expanding this option to other payment methods in 2020.

9.  U.S. Attorney Again Takes on Plaintiffs’ Attorneys for Failure to Reimburse Medicare – On March 18, 2019, the U.S. Attorney for the District of Maryland announced a $250,000 settlement agreement with the law firm of Meyers, Rodbell & Rosenbaum, P.A., as a result of allegations the firm failed to reimburse the United States for Medicare payments made to medical providers on behalf of a firm client.  This followed a 2018 action by a U.S. Attorney in Pennsylvania who reached a $28,000 settlement with a plaintiffs’ firm for failing to reimbursement Medicare.  Notably, just last month, the Maryland U.S. Attorney obtained a $90,000 settlement from a plaintiffs’ firm that had referred the case to co-counsel. 

8.  Open Debt Reports Available in the MSPRP – A 2019 update to the MSPRP provides a useful tool for insurer and self-insured entities to identify outstanding or unknown Medicare conditional payment demands.  Called the Open Debt Report, it is available to insurers and self-insured organizations, or as CMS calls them Responsible Reporting Entities (RREs), that have registered for MSPRP access (Tower can also access the reports when it is the Recovery Agent for the RRE). 

7.  Self-Reporting Functionality Added to MSPRP – In January, CMS added a self-reporting function to the MSPRP enabling MSP cases to be reported through the portal versus via phone or written correspondence to the Benefits Coordination & Recovery Center (BCRC).  Primarily a time-saving measure, it is a welcome improvement over having to speak to a BCRC representative who takes down the claim information and enters it into their system.

6.  Update to CMS WCMSA Reference Guide Clarifies Lyrica Policy – Throughout 2018, CMS increasingly added Lyrica (brand-name only at the time) to MSAs for diagnoses that had previously been considered non-Medicare covered.  In a January update to its reference guide, CMS clarified its reasoning for considering Lyrica Medicare-covered for radicular pain stemming from the spinal cord (cervical, thoracic and lumbar), even when there is no evidence of what is defined as a “traumatic” spinal cord injury.

5.  CMS Adds Electronic Submission Option for MSA Attestations – On October 7, 2019, CMS released an updated Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide which added the capability for both self- and professional-MSA 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 BCRC via mail. Electronic submission of annual attestations benefits both CMS and MSA administrators as it facilitates better and faster coordination of benefits. 

4.  Proposed Rules on LMSAs and Section 111 Penalties Again Delayed – The wait continues for CMS to issue proposed rules on Liability MSAs (LMSAs) and Section 111 Mandatory Insurer Reporting penalties.  CMS’s first notice in December 2018 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 (no rule have been released as of the date this article was published) and for rules on LMSAs to February 2020.

3.  Lyrica Goes Generic – In July 2019, the FDA approved multiple applications for generic Lyrica.  While not directly related to MSP compliance, this action has a notable impact on MSA allocation amount given the above-noted use of Lyrica for neuropathic back pain.  Lyrica went from $9.36 for a 50 mg pill at brand name to $0.90 today for the generic, effectively removing it as a significant cost-driver in the MSA.

2.  CMS Expands MSA Amended Reviews & Modifies Consents to Release in Updated Reference Guide – In October 2019, CMS released an updated WCMSA Reference Guide which expanded the Amended Review MSA lookback from four to six years post the prior MSA approval.  It also introduced some additional language to the Consent to Release form which requires the claimant to initial that the WCMSA was explained to him or her and that he or she approves of the contents of the MSA submission.  While the expansion of the Amended Review MSA is welcome news, the revised Consent to Release form, which becomes effective 4/1/2020, may cause delay in the MSA submission process.

1.  U.S. Appellate Court Holds Guaranty Fund Not a Primary Plan under the MSP Act – 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 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.

We chose the CIGA decision as #1 in our countdown because it stands for the principle that we should not readily accept everything CMS says as gospel.  While CMS rightly works to protect the Medicare trust fund, it should be challenged when it goes beyond its statutory and regulatory authority or does not even follow its own MSA review policy.

Every day Tower challenges CMS, whether it is the result of overinclusive Medicare conditional payments or unnecessary or mispriced medical care allocated in an MSA.  Notably, this year Tower repeatedly challenged CMS’s inclusion of urine drug screens in MSAs where there was no past history of use.  The result, CMS corrected its policy, saving employers and carriers tens of thousands of dollars.

If we can leave you with one New Year’s resolution, it is to not be afraid of challenging CMS, when warranted.   Tower will certainly continue to so on your behalf in 2020.

May you have a warm and wonderful holiday and all the best in the new year. 

New Guide to Medical Treatment After Settlement

December 13, 2019

graphic of Tennessee state outlined in trees

The Tennessee Bureau of Worker’ Compensation recently published the “30-Minute Guide to Medical Treatment after Settlement.”  Tower’s Chief Compliance Officer Dan Anders was a significant contributor to the guide, along with Ametros’ Dorothy Holland and Humana’s Brian Bargender, CRSP. 

An educational resource for the state’s injured workers who are deciding whether to settle the medical portion of workers’ compensation claims, the guide covers: 

  • Lifetime medical benefits vs. closed medical benefits
  • How future medical costs are calculated
  • Settlement negotiations
  • Workers’ Compensation Medicare Set-Asides (WCMSAs)
  • Self-Administration vs. Professional Administration of post-settlement medical funds

Designed to help injured workers better understand open lifetime medical benefits and the consequences of closing their workers’ compensation claims, the guide helps injured workers carefully consider their options and make informed decisions. The 19-page PDF is available at https://www.tn.gov/content/dam/tn/workforce/documents/injuries/30MinuteGuidetoMedicalTreatmentafterSettlement.pdf

CMS to Hold Town Hall on Medicare Conditional Payment Matters

December 9, 2019

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

The Centers for Medicare and Medicaid Services (CMS) recently announced a town hall “to discuss common Commercial Repayment Center (CRC) NGHP ORM Recovery topics.”  The town hall will be held on Tuesday, January 14, 2020 (There is a typo in CMS’s announcement which lists 2019) at 1:00 PM ET.  The notice can be found here.

When CMS says NGHP, it is referring to Non-Group Health Plans, namely conditional payment recovery in workers’ compensation, liability and no-fault claims.  Further, ORM, refers to the acceptance of Ongoing Responsibility for Medicals which is reported through the Section 111 Mandatory Insurer Reporting in process. 

CMS’s notice provides little detail of what is to be discussed except for stating, “(t)he format will be opening remarks by CMS followed by a brief presentation, and then questions and answers with the audience.”  We encourage anyone involved in Medicare conditional payment recovery, especially in WC and no-fault matters where ORM is regularly reported, to attend the town hall and also be ready with any questions.  You can also submit questions prior to the town hall to COBR-NGHP-Comments@cms.hhs.gov.

Tower will provide a summary and key takeaways from the town hall call after its conclusion.

Magic Number Remains $750 for Medicare Conditional Payment Recovery

December 3, 2019

chart, dollars and a fountain pen illustrating conditional paument recovery threshold post

In a 11/26/2019 Alert, the Centers for Medicare and Medicaid Services (CMS) announced that the 2020 recovery threshold for liability, no-fault and workers’ compensation settlements will remain at $750. Accordingly, Total Payment Obligations to the Claimant, TPOCs, in the amount of $750 or less are not required to be reported to CMS through the Section 111 Mandatory Reporting process, nor will CMS attempt to recover conditional payments for TPOCs of this amount (The threshold does not apply to liability settlements for alleged ingestion, implantation or exposure cases).

By way of background, pursuant to the SMART Act of 2012, CMS is required to annually determine a threshold amount such that the cost of collection does not outstrip the amount recovered through such collection efforts. CMS’s calculations, which can be found here, resulted in the $750 threshold being maintained.

Practical Implications

As CMS is keeping the $750 threshold for mandatory reporting and conditional payment recovery there are no changes to the reporting processes or determinations as to when conditional payments should be investigated or resolved.