rita.wilson, Author at Tower MSA

Not So Secret Tips for Quick and Successful MSA Submissions

June 8, 2017

It’s no secret quick and successful Medicare Set-Aside submissions to the Centers for Medicare and Medicaid Services (CMS) are driven by medical records which meet CMS requirements for review and approval of the MSA. At Tower MSA Partners we strive to work with our customers to prepare and submit to CMS MSAs meeting these requirements. By doing so, we limit the time for CMS to review the MSA and avoid unexpected MSA counter-highers which may jeopardize settlement of a workers’ compensation case or at least delay resolution.

Based upon the CMS WCMSA Reference Guide, which provides CMS’s official MSA review guidelines, and our years of experience in the submission of MSAs to CMS keep the following tips in mind during the process of preparing and submitting an MSA for review:

Provide medical records for the last two years of treatment, no matter how long ago those last two years were. CMS matches claim payment history to medical records.A date of service listed in the claim payment history without the relevant medical record submitted will usually result in a Development Letter requesting the record.

Example: If the last date of treatment occurred on 7/15/2016, then medical records are required back to 7/15/2014 or the date of injury, whichever is earlier.

If there are multiple body parts and/or dates of injury, then two years of medical records are required for each settling body part or condition.

Example: The MSA contains a 3/12/2016 date of injury to the right knee and a 6/7/1998 date of injury to the low back. Besides medical records for the right knee, medical records for the low back will also be required, even if treatment ended long ago.

The requirement for two years of medical records extends to medical records for treatment for which the WC carrier has not paid.

Example: A claim has been accepted and paid for quite some time, but as a result of a favorable IME report, the WC carrier denies payment for medical treatment after 11/1/2016. However, the claimant continues to treat for the claimed injury-related condition. CMS will require production of the medical records for post 11/1/2016 treatment.

Besides providing two years of medical records, if the claimant has not been treated by any doctor for any reason within the last two calendar years, then the last treating physician will usually need to provide a statement confirming last date of service and that all prescription medications, if any, were discontinued as of that date.The exception to this would be if at the time of the last date of service the physician provided a clear statement that the claimant was released from care with no ongoing treatment or medications

Example: The last treatment record is a date of service of 5/12/2015 at which time the claimant was noted to be on Tramadol and was to follow-up in six months. There is no evidence that the claimant followed-up. A statement will be required from this physician confirming last date of service and that medications were discontinued.

Open-ended or inconsistent treatment recommendations must be addressed with the treating physician.

Example: Last date of service on 3/7/2016 documents the claimant to be on one medication, Tramadol. However, a review of the prescription history through 5/31/2016 documents Tramadol and Norco. A statement from the treating physician is required to clarify prescription medication use.

Provide all relevant legal determinations which in anyway limit medical care.

Example: A judicial decision after a hearing on the merits finds the claimant’s request, supported by the treating physician’s recommendation, for a spinal cord stimulator, to not be reasonable or necessary to treat the claimant’s work-related condition.

Along with medical records, provide the prescription history for the medications paid on the claim.If for whatever reason the medical records document injury-related prescription medication use, but the medications were not paid on the claim, then a prescription history will need to be obtained from the claimant’s pharmacy.

Example: The treatment records document ongoing Oxycodone use which, based upon the prescription payment history, is not being paid on the claim. An itemization from the claimant’s personal pharmacy will be required documenting fills on Oxycodone.

Tower MSA Partners Physician Follow-up Service: At no additional cost to the customer, as part of preparing an MSA for submission to CMS, Tower MSA’s Physician Follow-up Team will reach out to a treating physician to confirm last date of service and clarify prescription medication use, whether continued or discontinued.

Other common questions regarding medical records and MSA submission to CMS:

Can depositions be submitted to CMS for review?

Yes, but in our experience, CMS will give more weight to opinions and statement made in physician reports documenting an examination of the claimant over opinions contained in a deposition.

Can an IME be submitted to CMS for review?

Yes, but in most cases CMS will rely upon the opinions and recommendations of the treating physician over that of an IME physician. In states where there are court-appointed IMEs (or AMEs in California), depending upon the facts of the case, CMS may rely upon those opinions and recommendations over those of the treating physician.

Following Tower MSA’s preparation of the MSA report, the claimant underwent additional treatment. Should Tower MSA review and submit these medical records to CMS?

Yes, there is often a lag time between the time the MSA is prepared and when it is submitted to CMS during which additional injury-related treatment occurs. While in general we advise updating an MSA report after six months, quite often there is additional medical care occurring in a timeframe of less than six months. We will review any recent medical records provided and determine if the MSA needs to be revised prior to submission to CMS.

Can the claimant provide a statement regarding last date of work-related medical care in lieu of a statement from the treating physician?

In situations where the treating physician no longer practices or is deceased, a statement from the claimant may be sufficient. However, if the claimant’s statement is insufficient then the claimant may need to produce either medical records or a statement from his current Primary Care Physician confirming no ongoing care for the work-related injury.

If you have any additional questions, please do not hesitate to contact Tower MSA Partners at info@towermsa.com or (888) 331-4941.

Denied Claim Zero MSAs: Still Available, but Put Through the Wringer by CMS

April 28, 2017

In October 2016, CMS made an unannounced policy change which effectively eliminated the ability to obtain a Zero MSA approval from CMS based upon a complete denial of the claim, without a supporting judicial decision. After only a couple weeks, CMS withdrew this policy change and again allowed for approval of Zero MSAs based solely upon a complete claim denial. Nonetheless, these Zero MSAs reviews are placed through the proverbial wringer by CMS such that it is important to understand when a case meets the criteria for a Denied Claim Zero MSA and the documentation required to obtain CMS approval.

Denied Claim Zero MSA Approval Criteria: A Denied Claim Zero MSA (or Legal Zero MSA) approval from CMS is available when the claim has been completely denied with no medical or indemnity payments having been made with the exception of medical payments made for non-treatment purposes such as IMEs, case management and medical records copies (Note, in certain limited situations a Zero MSA may be approved with medical treatment payments having been made. Please consult with Tower MSA).

Importantly, CMS will not approve a Denied Claim Zero MSA if settlement is made final and/or a settlement payment or any medical or indemnity payment is made prior to CMS approval of the Zero MSA. A tentative or agreed to settlement is allowable, but please do not make the settlement final or make indemnity or medical payments prior to CMS approval of the Zero MSA.

If the case meets this criteria, then CMS has strict documentation requirements which must be adhered to or the Zero MSA will be rejected. Notably, since the policy change and rollback occurred in October 2016, CMS has added a requirement to provide claim reserve documentation. The requirement for claim reserve documentation, as well as all other supporting documentation, is detailed below.

Denied Claim Zero MSA documentation requirements: The following documents are required by CMS to obtain approval of a Zero MSA based upon a complete claim denial:

1. Claim Payment History

A claim payment history printout, even if blank, representing payments since the inception of the claim. All payments must be itemized.

Printout must be divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total listed. Print or run date listed on the printout.

Date range for listed payments – Must be since inception of claim.

If the Claim Payment History does not meet the above requirements, then the following rules apply:

Provide a copy of the available Claim Payment History with the following statement inserted, signed and dated in the document:
This document provides a complete representation of all payments made on the life of the claim (including medical of $0* and indemnity of $0)

Signed:
Date:
*If medical payments were made, provide the invoices or reports, i.e. IME report, associated with those payments and see below Financial Detail and Denial Letter requirement.

Letter providing an explanation why a Claim Payment History meeting CMS’s requirements is not available (See below Financial Detail and Denial Letter)

2. Claim Reserves

A Claim Reserves printout divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total.

Print or run date listed on the printout.

If there is a legal argument for claiming the reserve information is privileged then the legal argument, including citations to statute or case law must be provided along with a copy of a redacted (reserve information blacked out) version of the Claim Reserves printout.

If no reserves were placed on the claim, then a statement regarding the same.

3. Draft or final settlement documents and court orders or rulings or a statement that no such documents exist
(See below Financial Detail and Denial Letter).

4. First Report of Injury or a statement that no such document exists (See below Financial Detail and Denial Letter).

5. Financial Detail and Denial Letter – Tower MSA will provide draft letter upon request for submission of the Zero MSA to CMS

A statement indicating the claim was completely or fully denied with no medical or indemnity payments having been made.

If medical payments have been made for non-treatment purposes, i.e. IME, case management, medical records requests, then if the Claim Payment History does not properly explain the purpose of these payments, then provide an explanation for the payments.

If the available Claim Payment History does not meet the requirements under #1, then state that the carrier’s claim system does not have the ability to provide a Claim Payment History printout with the information requested by CMS, i.e. print date, subtotals for medical, indemnity and expenses.

If Claim Payment History did not meet the requirements under #1, then insert the requested information into the letter, i.e.list categories for medical, indemnity and expenses with subtotals for each category and a grand total.

If there are no draft or final settlement documents and no court orders or rulings, then a statement regarding the same.

If there is no First Report of Injury, then a statement regarding the same.

Letter must be placed on letterhead and hand signed.

6. Consent to Release form executed by claimant

While CMS places Zero MSA submissions based upon a complete denial through the wringer, these approvals remain available for workers’ compensation cases meeting the applicable criteria. Please contact Tower MSA Partners at referrals@towermsa.com or (888) 331-4941 to refer a claim meeting these requirements or for further consultation.

Christmas Miracles Can Happen in Workers’ Compensation

December 23, 2016

For those of us who deal with MSAs, it’s all too common to see claims at settlement time that started out as basic and simple, then spiraled downward as a result of bad prescribing habits, increased drug use and opioid addiction. We hope for a different ending, but can miracles really happen?

Background

In late 2015, Tower completed a pharmacy project for a small employer in California. In the course of the project, drug triggers were identified, physicians were contacted and claimants were challenged to settle or make changes in treatment. As you might imagine, many of the physicians fought the request for change. But through perseverance, and working in tandem with the client, we pushed forward.

The Story as Shared by our Client

Dear Hany,

A few weeks ago, I was looking over the case for one of the California claimants and wanted to share the amazing results we have achieved with this gentleman.

This case involved a 26 year old man at time of injury. He sustained a minor back injury but was taking Hydrocodone, Testosterone, Celecoxib, Lyrica, Nortriptyline, Methocarbamol, and FENTANYL. With the recommendations and assistance from the Tower MSA Partners team, as well as support from his wife, we were able to get him into a new treating physician who agreed with our goal. He was weaned off of the Fentanyl, Methocarbamol, testosterone, hydrocodone, and Celecoxib. He has even started an exercise program. He is now both proud and happy to report how well he is doing.

The injured worker is now 51 years old and he sadly notes that he missed out on 25 years of his life and his children’s lives because he was so “drugged”. On a positive note, however, his new treating physician has been wonderful to work with and we see only good things for this claimant.

On the financial side we have now realized a reduction in the monthly Rx spend from $1,200 per month down to $600. The injured worker is now only taking Nortriptyline, Lyrica and Celebrex and we expect to reduce reserves next year and approach him for a settlement in June, 2018. None of this would have been possible if not for the Rx project and your team’s expertise, guidance and follow up assistance.

While we have had great success with many of the claims that we partnered on, this particular claim was really about improving his quality of life. So please share my THANK YOU and gratitude with your team. Let them know that what they do can save a life and that is priceless.

It’s True….Miracles Can Happen in Workers’ Compensation

What a wonderful way to end the day and begin our holiday celebrations!

From all of us at Tower MSA Partners, our best wishes for a wonderful holiday, and a safe and prosperous 2017!

CMS Hits ‘Reset’ Button With Workers’ Compensation Review Contractor Procedures and Request for Approval of Zero-Dollar Medicare Set-Aside Amounts

November 2, 2016

In an announcement distributed on November 1, 2016, CMS acknowledged the receipt of many inquiries from the MSP industry regarding procedural changes in the way CMS’s Workers’ Compensation Review Contractor (WCRC) reviews proposed zero-dollar Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. CMS further acknowledged that as a result of these inquiries, it has determined that changes had transpired without prior notification, and that effective immediately, the WCRC will utilize (the) procedures that were previously in effect, further noting that CMS continually evaluates all policy and procedures related to WCMSA reviews and will publish any pending changes when or before they go into effect.

Background

Prior to October, 2016, the Workers’ Compensation Review Contractor’s procedure with Zero Dollar WCMSAs in cases where evidence of a complete denial of the claim was handled as follows:

The carrier’s complete denial would be evidenced by
- a claim payment history documenting no payments for medical treatment and indemnity and
- a letter from the adjuster or defense attorney confirming such full denial.
The MSA must be submitted to CMS for approval PRIOR to obtaining a court-approved settlement.

When these conditions were met, the settlement would be recognized as a strict compromise and CMS would issue a determination letter staying no MSA is needed.

While CMS never published this procedure as an official policy in the WCMSA Reference Guide, the policy was exercised regularly and consistently. As such, Tower, as well as many other MSP companies, incorporated this “policy” into its standard CMS submission procedure for Zero WCMSAs for denied claims.

The October ‘Surprise’

Beginning in October, 2016, with no notice, CMS responses for denied claims took a complete 180 degree turn in terms of the WCRC’s review process. No longer was the carrier’s evidence of complete denial of the claim sufficient to obtain CMS’s approval of a Zero WCMSA.

When questioned regarding its rationale for this drastic change, CMS noted only that there was a ‘NEW‘ procedure being followed by the WCRC, and in order to obtain approval of a Zero WCMSA one of the following would be required:

A court ruling regarding the compensability of the claim; or,
Treatment records (i.e. a letter from the treating physician) which demonstrate/indicate that no further treatment for the alleged industrial condition(s) will be required.

Unfortunately for the industry, there was no advanced notice of the change in procedure, no documentation of the change and no explanation of CMS’s rationale for making such a drastic change. We, along with everyone else in our industry, basically learned about this through development letters and undesirable dialogue with WCRC & CMS representatives.

Industry Reaction and CMS’s ‘Reset’

As expected, companies reacted immediately, contacting CMS to request answers, and seeking to determine how WCMSAs currently being reviewed would be handled. Tower clients with cases pending with CMS were advised to wait to see if the case would be developed or if CMS would follow its original policies. If developed, the case could be withdrawn.

In an effort to further clarify, NAMSAP (National Alliance of MSA Professionals) also intervened on behalf of its constituent members to confirm why the change was made, to ‘demand’ the courtesy of notice, and to offer its expertise to assist CMS in setting future policy to simplify the process rather than creating confusion and chaos.

As a result of the avalanche of questions, concerns and complaints, CMS has now taken a very positive step back, announcing that it will revert to its original, established procedure for reviewing Zero WCMSA for denied claims until such time as it can analyze, define policy, establish review procedures, communicate to the MSP industry and provide ample notice.

What’s Next?

With today’s announcement that the WCRC will revert to its original procedure for reviewing Zero WCMSAs for denied claims, the industry can return to its internal policies for setting settlement strategy with a clear understanding of the review process that will be executed by CMS’s review contractor when evaluating Zero WCMSAs.

As a reasonable next step, NAMSAP has offered to serve as a resource to CMS to provide industry experiences, to identify the perceived impact of the WCRC’s shift in policy, and to open dialogue regarding both our goals and the unintended consequences of CMS’s shift in review practices. I trust CMS will consider this offer, and will engage in conversations that will lead to a seamless

Stay tuned….

CMS: Workers’ Compensation Medicare Set Aside Arrangements

FDA Mandates New Warnings for Opioid and Benzodiazepines

September 20, 2016

In a statement released on September 1, 2016 (FDA Black Box Warning), the Food and Drug Administration (FDA) announced that “after an extensive review of the latest scientific evidence, it is requiring class-wide changes to drug labeling, including patient information, to help inform health care providers and patients of the serious risks associated with the combined use of certain opioid medications and a class of central nervous system (CNS) depressant drugs called benzodiazepines.”

Background

Benzodiazepine medications are most commonly prescribed to treat anxiety and mood disorders, such as depression and insomnia. The drugs also are used to treat seizures. According to the FDA, the number of individuals who were prescribed both opioids and benzodiazepines grew by 41 percent, or 2.5 million, between 2002 and 2014.

States submitted a petition to FDA calling for the agency to add black-box warnings about the potentially fatal combination of opioid painkillers and benzodiazepines to the drugs. The officials said prescription opioids and benzodiazepines often are used together, and data show that almost one in three unintentional overdose deaths from prescription opioids also involved benzodiazepines.

What drugs are impacted?

The agency is requiring that black box warnings, the strongest available, be added to nearly 400 products (of which more than 200 are opioid painkillers) alerting doctors and patients that combining opioids and benzodiazepines can cause extreme sleepiness, slowed breathing, coma, and death.

The FDA is warning patients and their caregivers about the serious risks of taking opioids along with benzodiazepines or other central nervous system (CNS) depressant medicines, including alcohol. Serious risks include unusual dizziness or lightheadedness, extreme sleepiness, slowed or difficult breathing, coma, and death. These risks result because both opioids and benzodiazepines impact the CNS, which controls most of the functions of the brain and body.

The bigger picture

The agency said the move is one of a number of steps the FDA is taking as part of the agency’s Opioids Action Plan, which focuses on policies aimed at reversing the prescription opioid abuse epidemic, while still providing patients in pain access to effective and appropriate pain management. For those who may not know what’s in play or want more information about the national effort, go to TurnTheTideRx.Org to access the U.S. Surgeon General’s plans to curb the epidemic.

In responding to the announcement, FDA commissioner Robert Califf noted, “It is nothing short of a public health crisis when you see a substantial increase of avoidable overdose and death related to two widely used drug classes being taken together,” He further added, “We implore health care professionals to heed these new warnings and more carefully and thoroughly evaluate, on a patient-by-patient basis, whether the benefits of using opioids and benzodiazepines … together outweigh these serious risks.”

What does this mean to you?

In dealing with workers’ compensation claims for Class I and Class II Medicare beneficiaries, the combination of opioid pain killers and benzodiazepines is a common occurrence. When we see it, we immediately notify the claims handler that this is a dangerous combination and certainly not intended for long term use. For the elderly, drug combinations such as this are even more dangerous as their effects are exacerbated due to the rate at which they metabolize in an elderly person. For those who may not be familiar, there is an excellent resource (2015 Beers Criteria for Potentially Inappropriate Medication Use in Older Adults) that focuses on commonly used drugs and the risks and potential dangers when prescribed to the elderly. According to the guide,

“Older adults have increased sensitivity to benzodiazepines and decreased metabolism of long-acting agents; in general, all benzodiazepines increase risk of cognitive impairment, delirium, falls, fractures, and motor vehicle crashes in older adults and should be avoided”.

One of many pieces of the opioid puzzle

As stated within the “TurnTheTideRx” campaign literature, it is truly “All hands on deck” if we hope to change the course of the opioid epidemic. It will take patient, family members, friends, and in the case of workers’ compensation claims, claims handlers, nurse case managers, employers, carriers and even MSP compliance providers to help change prescribing habits. While legislative, regulatory and compliance entities can assist by setting policy, it is the physician who writes the first script. When I see that one of the largest emergency rooms in the country (One of Nation’s Largest ERs Kicks the Opioid Habit) can function without writing opioids as first line pain management for acute pain, I am convinced that a change is possible if we can engage our physicians.

We are but one piece of this very complicated puzzle, and “Big Pharma” has deep pockets. Through education of all stakeholders, advocacy to those in positions of power and influence, and our respective collaborative efforts to optimize claims and treatment, we can make a difference in the lives of our patients.

Opioids in the Life of the MSA… Coming Soon

June 10, 2016

In a statement released on June 7, 2016, the National Alliance of Medicare Set-Aside Professionals (NAMSAP) announced the 2nd in a series of webinars focused on opioid drugs in the Medicare Set Aside. The release can be found at NAMSAP Presents “Opioids in the Life of the MSA” Webinar on June 21

Background

Since the creation of NAMSAP’s Evidence Based Medicine Committee in 2014, opioid use has been in the forefront of attention within NAMSAP. As a member of NAMSAP’s Board of Directors, I have participated in our organization’s efforts to collaborate with experts on this critical issue, to educate our members as to what is happening when opioid involved MSAs are reviewed by CMS, and now to advocate to entities outside of workers’ compensation.

Our goal is to publicize the conflict between the WCMSA review process and CMS’s own criteria for opioid addiction triggers, prior authorization requirements and mandatory weaning. This release explains the rationale and basis for our request: NAMSAP has called for CMS to limit opioids in the MSA review;

The easy answer

Many say the answer to the inconsistencies in the WCMSA review process as it relates to opioids is to stop submitting the MSA to CMS. “Why feed into a broken system?” is the question I’ve heard. If opioids aren’t appropriate for life expectancy, if addiction is imminent, if weaning is appropriate, then include this in the MSA and just don’t submit.

I absolutely endorse CMS non-submission as an option. Where I may differ from others is that I believe it should be decided based on the facts of the case as compared to the objective and subjective nature of CMS’s review and approval process. Unfortunately, I fear a corporate non-submit strategy is a slippery slope down the path of massaging the MSA to ‘fit’ the needs of the moment. That is not its intent of the MSA, nor will it be left unchallenged in the long term.

What if?

I believe the prevalence of opioids in workers’ compensation indicates something is broken, but the break is much further up the food chain. Can and should CMS ‘fix’ a problem that we have allowed and enabled over the life of the claim? Can an excise tax on opioids fix the problem?

What if we looked at things differently?

What if we identify the physicians who don’t write for opioids as first line treatment for pain?
What if we know and use the physicians with a proven track record of getting patients back to work
What if we implement triggers to identify initial onset and changes in opioid dosage and frequency?
What if an increase in Morphine Equivalent Dosage was measured and addressed immediately with the physician?
What if we leverage PBM reports and tools to block opioids based on corporate designated criteria, and then execute an action plan?
What if we use jurisdictional options like UR, IMR, challenging treatment to force dispute resolution and state options to allow the carrier to control physician choice where these options exist?

What if?

Working both sides

Every company has its own strategies to address the opioid issue. Our policy at Tower is to ask every ‘what if‘ question possible as we work with clients throughout the claim and settlement process. Whatever the answer, whether it’s physician follow up to track weaning, a formal physician peer review to challenge inappropriate treatment, or negotiating a Conditional Payment Notice to dissociate unrelated treatment, our MSP Automation Suite drives and tracks every step in the process. We push the claim to optimize outcomes and acknowledge when the MSA is ‘ready‘ to submit.

The result of the combined efforts of all stakeholders in workers’ compensation, according the WCRI report on opioids released on June 9, 2016 is that the industry has made positive strides to address opioid issues. Now NAMSAP is challenging CMS to modify the WCMSA review criteria so that it more closely mirrors its own Part D approvals process.

I hope you will join the webinar as we look at the policy side of the opioid issue within the MSA and that you join our advocacy efforts.

CMS to ‘Consider’ Expanding Its Review Process to Include Liability MSAs

In a News Alert released Thursday, June 9, 2016, the Centers for Medicare and Medicaid Services (CMS) announced is considering expanding its voluntary Medicare Set-Aside Arrangements (MSA) amount review process to include the review of proposed liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS plans to work closely with the stakeholder community to identify how best to implement this potential expansion. CMS will provide future announcements of the proposal and expects to schedule town hall meetings later this year.

The link to the alert can be found in the ‘What’s New’ section of the Medicare Coordination of Benefits and Recovery Overview page at CMS.gov.

https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Whats-New/Whats-New.html

Background

Signed in June, 1980,

42 U.S.C. §1395y(2)(A)) prohibits Medicare from making payment, except as provided in (B), for any item or service, to the extent that payment has been made, or can reasonably be expected to be made, under a workers’ compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan), or no fault insurance.

42 U.S.C. §1395y(2)(B) – The Secretary may make payment under this title with respect to an item or service if a primary plan as described in Subparagraph (A) has not made or cannot reasonably be expected to make payment with respect to such item or service promptly. Any such payment shall be conditioned on reimbursement to the appropriate Trust Fund in accordance with the succeeding provisions of this subsection.

While statutory provisions included Liability cases, there were no LMSA guidelines . As a result, actions taken to comply with the MSPA statutes in a Liability case ranged from extremely conservative to strategies that earned the LMSA environment its characterization as ‘The Wild West’. Those who took the conservative route followed the CMS guidelines established for WCMSA. Other strategies ranged from making the LMSA decisions based on the severity of the injury in a liability case to doing nothing.

CMS’s Review of LMSAs

With no established thresholds for CMS submission and review, those who took the conservative path followed WCMSA guidance and attempted to submit. While certain of the CMS offices would review an LMSA, acceptance was random. Eventually, with greater acceptance and use of the WCMSA portal, CMS began to reject LMSAs. Submitters could make the effort to submit and obtain a letter of rejection.

While not a ‘safe harbor’, the attempt to submit was at least evidence of efforts to follow the guidelines.

CMS’s first attempt to address LMSAs

In June 2012, CMS began the process by releasing an Advanced Notice of Proposed Rulemaking (CMS-6047-ANPRM) to solicit public comment on how to implement an MSP process for liability settlements. The ANPRM received many public comments.

On August 1, 2013, CMS sent the NPRM to the OMB for their approval. The NPRM was never made public because the OMB did not approve it, and on 10/8/2014, this last attempt at ‘guidance’ surrounding Liability MSAs faded into the sunset whenCMS withdrew the NPRM. The reasons for the OMB’s rejection of the proposal were never made public.

Where are we now?

With the Liability TPOC mandatory reporting threshold of $1,000 beginning January 1, 2015 (and the voluntary threshold of $300), the BCRC now has access to more data on Liability claims than ever. And with the announcement of the CRC (Commercial Repayment Center) in October, 2015, and its singular focus on payer recovery, the BCRC has greater resources to pursue recovery with Liability settlements. With this combination of information and resources, it would follow that the absence of documented evidence to show that Medicare’s interests have been considered when settling a liability claim might lead to financial exposure for all stakeholders in the process…. the perfect time to introduce ‘guidance’ for the LMSA.

Tower will continue to monitor associated news on this topic and will actively participate in the TownHall Meetings regarding this topic.

Age Is More Than Just a Number… Protecting Older Workers to Help the Bottom Line

May 18, 2016

Older workers can be a valuable asset to any company. The institutional knowledge they bring, combined with their years of experience and a solid work ethic make them an integral component of any organization seeking to move forward successfully. Employers can realize the most benefit from their aging workers by ensuring they stay safe and healthy and recover quickly when they do become injured.

Due to elements of the natural aging process and often the presence of co-morbid conditions, older workers typically take longer to heal from their injuries than younger employees. With the prediction that 25 percent of the workforce will be at least 55 years of age by 2020, the National Institute for Occupational Safety and Health has developed a variety of materials to help employers understand and address some of the unique characteristics of older workers.

A primary focus of NIOSH is roadway crashes — the leading cause of occupational fatalities for older workers in the U.S. Older workers are more likely to be injured in a crash and more likely to die if they are injured. In fact, they have twice the risk of dying in a work-related motor vehicle crash than younger workers. According to the government, death rates for work-related roadway accidents increase steadily beginning around age 55.

Driving ability can be affected by a variety of physical factors; such as reduced vision, slower reaction times, declines in cognitive functioning, and chronic health conditions. The good news is that the effects of these and many other conditions can be greatly reduced or resolved with treatment. Employers are advised to work with their employees do develop safety and health programs that consider older drivers’ needs. Some companies are taking this advice to heart, and seeing great results.

“The safety of older drivers in the workplace is a shared responsibility of employers and their employees,” NIOSH states on its website. “Forward-thinking safety programs, reasonable accommodations, and open lines of communication between employers and workers can help protect valued older employees from death or disability due to roadway crashes.”

Effects of aging

Becoming aware of bodily changes that can affect a worker’s driving ability is the first order of business for employers that seek to protect their older workers. According to NIOSH, the following are among those changes:

Diminished eyesight and the need for more light can affect driving ability in some people. Older workers affected may find it especially difficult to drive at dawn, dusk, and at night. Cataracts and macular degeneration may make it harder to read signs and see colors.
Diabetes can make blood sugar levels too high or low, which can lead to drowsiness, dizziness, confusion, loss of consciousness, or seizures. Arthritis may cause stiff joints, limiting movement of shoulders, hands, head, and neck and making it difficult to grasp the steering wheel or apply brake and gas pedals. And sleep apnea can increase the risk of drowsy driving. Medications can interfere with sleep quality, also increasing the risk for drowsiness.
Motor skills.As they decline with age, it can become more difficult to have the strength to step on the brake or gas pedal. A decrease in flexibility makes it harder to see all angles of the car. A lack of coordination can make it more difficult for the upper and lower body to work together while simultaneously braking and turning.
Mental abilities.Attention span, memory, judgment, and the ability to make decisions and react quickly may be affected. Older drivers may feel overwhelmed by signs, signals, pedestrians, and vehicles around them.

What you can do

So what can an employer do? For one thing, employers can instruct all workers regarding driving best practices… use caution at intersections, especially when making left-hand turns, often a trouble spot for aging drivers. Helping older workers — as well as all employees — maintain their overall health is key to preventing tragic accidents.

What one company has done

One national transportation company, and a client of Tower MSA Partners, is protecting its aging drivers in a variety of ways. For one thing, the company employs a nurse who routinely calls all employees — whether they have company-sponsored health insurance or not. The nurse discusses annual physical exams and ways employees can take better care of their health. That strategy alone has resulted in a significant number of employees having at least a primary-care-physician.

The company’s focus on health and safety has also led many employees with chronic conditions to get treatment for their hypertension, diabetes, and sleep apnea.

For older workers that do become injured, the company’s key focus is on actions that will bring the worker back to function and work in a timely and positive way. Sometimes that means temporarily covering a medication, for example, to allow surgery to move forward.

Return to work is also a challenge when drivers are injured. For this company, a key step in the rehabilitation process is to engage a Return-to-Work company as soon as the injured worker is released to some level of activity. Keeping the employee active and involved in the recovery process is critical to maintaining forward progress. As the employer states, “the preventive work we are doing and our focus on return-to-work should help alleviate healing delays when/if a workers’ comp injury occurs.”

NIOSH suggests companies also develop and enforce a comprehensive driver safety policy, offer refresher driver training and encourage older workers to attend, and keep complete and accurate records of workers’ driving performances. Also, have policies that ban texting and hand-held phone use to prevent distracted driving, make sure work schedules allow workers to obey speed limits, and allow employees to take naps of less than 30 minutes or stop in a safe location if they are tired.

Tower’s perspective

As an MSP compliance company, Tower MSA Partners has a laser focus on best practices in claims management and settlement optimization when dealing with an aging workforce. We identify the co-morbid conditions that exacerbate injury severity, increase the cost of treatment and add time to rehabilitation, and seek to educate our clients as to potential exposure when these conditions exist. Injuries are inevitable. Our goal is to know where claim cost can spiral out of control and assist clients to identify, intervene and mitigate before the MSA.

The pursuit of positive health choices to minimize accident frequency, and optimize recovery when injuries do occur, is paramount to improving claim, settlement and MSA outcomes.

For more information visit www.cdc.gov/niosh/docs/2016-116/default.html/?s_cid=3ni7d2employerblog032016.

Lyrica – High Claim Cost Doesn’t Necessarily Mean High Dollar MSAs

January 13, 2016

Lyrica is one of the most widely prescribed ‘pain’ medications in the workers’ system. Unfortunately, it is also one of the most expensive. Add to that the fact that it is typically prescribed ‘off label’ for injured workers, and you’ve got a recipe for high claim cost. But will this high dollar monthly drug spend translate to a high dollar MSA?

Lyrica’s 2016 price increase

Lyrica is among more than 100 drugs that saw price increases as of Jan. 1, 2016. Drug maker Pfizer said the company had raised the price by a whopping 9.4 percent this year. That follows the 20.5 percent increase in its average wholesale price just two years ago. With patent protection firmly in place, a generic version is not expected for at least two years.

While workers’ compensation stakeholders seek medical treatments that result in the best outcomes for injured workers, and off label drug use is common in both workers’ comp and group health, starting with an off-label medication is unnecessary. First-line therapy should be those medications that are FDA-approved for the patient’s condition.

Lyrica’s off label use

Lyrica is FDA approved for only a limited number of conditions, not chronic pain in general. The Food and Drug Administration has indicated the drug for pain associated with diabetic peripheral neuropathy, post-herpetic neuralgia, partial onset seizures, fibromyalgia and neuropathic pain associated with spinal cord injury.

If you have a claimant on Lyrica who does not have any of the above conditions, Medicare WILL NOT cover it — meaning that while you, the payer, may foot the bill as part of your monthly claim spend, Lyrica would NOT be included in the Medicare Set Aside should you move toward settlement. Many medical providers, as well as insurance carriers, are unaware that the medication is not covered by Medicare for off-label uses.

Tower MSA recently saved a client $179,000 after confirming Lyrica was being prescribed off-label and, therefore, should not be included in the MSA. That’s just one example of a high dollar claim cost that did not translate to a high dollar MSA projection.

What to do

Lyrica is just one of the many medications prescribed off-label in the workers’ compensation system. There are many others, like Lidoderm patches, Terocin cream, ACTIQ, Abilify…. all extremely expensive drugs that are not decreasing in price anytime soon.

If you’re unsure as to whether a drug is being prescribed off label, contact Tower and ask the question. If you’re considering settlement, you might also consider Tower’s Pre-MSA Triage. This service identifies unnecessary/inappropriate treatment and recommends claim specific intervention strategies to optimize claim cost before the MSA.

Whether a recommended intervention involves clarification that a medication is being prescribed for an off label use, contact with the treating physician to obtain discontinuation of medications not intended for long term use, or a complete physician peer review with peer to peer collegial dialogue, Tower’s MSP Automation Suite drives the process, tracking progress through completion. As a result, payers can better manage treatment and proactively lower their costs before discussions of the MSA ensue.

Conclusion

Never underestimate the value of a good doctor in optimizing claim outcomes. Payers should identify good physicians through data analytical resources and tools, and not settle for mediocrity. Next, work with your PBM to established and enforce pharmacy guidelines when authorizing treatment. Finally, be proactive in utilizing state jurisdictional options to avoid inappropriate treatment.

Optimal care, cost and compliance can be achieved.

Pre-MSA Triage Works!

November 17, 2015

Inappropriate and/or unnecessary prescription drugs, along with recommended medical procedures that are recommended, but never performed, are all too common in workers’ compensation claims. Yet they are often overlooked when moving a claim to settlement. But a new tool is helping payers identify and address obstacles, saving millions of dollars in MSA and settlement costs. Several recent cases bear out the program’s success.

Tower MSA Partners developed this unique service to ensure MSAs include only accurate and appropriate medical and pharmaceutical treatment. The Pre-MSA Triage allows payers to stage claims for optimal outcomes by providing a snapshot of MSA exposure before the MSA. By following our recommended interventions, clients are achieving CMS approval of reduced MSAs, with reductions of more than 50% in many cases.

How it works

Tower analyzes 6 months of medical records to identify care and cost issues, including the projected MSA cost of a claim based on the current medical and pharmacy treatment regimen. The review also provides a snapshot view of the MSA exposure in a non-discoverable (not an MSA) format, and offers an overview of inappropriate, unnecessary treatment and cost drivers that may impact MSA and settlement. For example, the review may uncover denied injuries and/or body parts, recommended surgical procedures that were never pursued, spinal cord stimulators that were recommended but never evaluated, gaps in treatment dates, unrelated medications, and off-label drug usage.

We then recommend various interventions, such as physician peer review, clinical oversight and conditional payment searches/negotiations to effect improved outcomes and savings in the overall claim costs, frequently as much as 50 percent!

Example Case Study

Tower’s Pre-MSA Triage projected the MSA cost for a 46-year-old male at $1,300,000. More than $1,000,000 of the total projection was due to extended prescribing of both long and short acting opioids. Tower recommended a Physician Peer Review followed by direct dialogue with the treating physician. Agreement to wean was obtained in writing and Tower initiated its clinical nurse oversight service to track progress.

Through Tower’s MSP Automation Suite, developed and maintained internally, we were able to drive the weaning process with the physician through tracked monthly calls, and to guide the adjuster as to when discontinued medications should be blocked by the client’s PBM.

Upon finalization of the weaning process, Tower worked with defense to obtain the necessary written language from the treating physician to confirm discontinuation and remove past medications. The final MSA was submitted and approved by CMS for $210,641 – a savings of more than $1,000,000 from the original estimate!

Conclusion

The example provided here is one of many success stories we are seeing, and through our MSP Automation Suite, we’ve been able to manage the process from triage through final CMS submission and approval in a secure, digital environment. Whether handled internally by our team of nurses or through a formal intervention and peer dialogue by one of our physicians, our system drives every step in the process.

Many companies can identify problems, and some even make recommendations. At Tower, we believe the key to successful MSA outcomes is a proactive approach to identify, intervene and remain involved through closure.