MSP Compliance Blog

Expert summary, analysis and recommendations on issues impacting Medicare Secondary Payer compliance.

Tower Non-Submit MSA: A Reasonable Alternative

Posted on September 1, 2021 by Tower MSA Partners

To submit or not submit a Medicare Set-Aside for approval from the Centers for Medicare and Medicaid Services (CMS) has been a hot-button issue for several years.    While some follow a global non-submit strategy others opt to follow CMS’s guidance, where possible, considering a non-submit MSA only in specific situations.   Whether a Non-Submit MSA is utilized for settlement depends on several factors and risk tolerances, and Tower MSA Partners stands ready to analyze your claim and help you decide.

A Non-Submit MSA, sometimes called an Evidence-Based MSA, may be a reasonable alternative when the settlement does not meet CMS’s Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) review thresholds. It may seem obvious to use a Non-Submit MSA when the MSA will not be submitted to CMS, but as the methodology in drafting the Non-Submit MSA varies from CMS policy (as detailed below) some prefer to stick to CMS policy for drafting the MSA, even when not submitted.

Besides utilizing a Non-Submit MSA when CMS MSA review thresholds are not met, as the review process is voluntary, settling parties may choose a Non-Submit MSA even when the review thresholds are met.  This carries with it inherent risks in that CMS takes the position that if the funds set-aside prove insufficient “Medicare will refuse to pay for services related to the WC injury (and otherwise reimbursable by Medicare) until such expenses have exhausted the entire dollar amount of the entire WC settlement.”

A Non-Submit MSA report may have a lower allocation amount than a CMS-approved MSA because of the following features:

  • Full Use of Evidence-Based Medicine – Use of evidence-based medicine, i.e., Official Disability Guidelines (ODG) or state treatment guidelines to determine reasonable care to allocate in MSA.
    • CMS inconsistently uses evidence-based medicine in its MSA review process. Using ODG and state treatment guidelines may result, for example, in a lower frequency of diagnostic testing or physical therapy visits compared to a CMS-approved MSA.
  • Examining Physician Opinions Considered – Both treating and examining physician recommendations are considered in drafting the Non-Submit MSA.
    • CMS gives little consideration to examining physician opinions in its approval process.  Depending on the case, the examining physician may be in a better position to provide appropriate recommendations for current and future medical care because of their expertise and the timing of their opinion.  For example, a recent IME opinion on the necessity of surgery may be followed as opposed to a treating physician recommendation from a year ago.
  • State Statutes and Regulations Followed – Fully follow state statutory, regulatory, and other legal bases for including or excluding care from the MSA.
    • While CMS approval requires an “Alternative Treatment Plan” when medical care is denied through a statutory utilization review (UR) process, a Non-Submit MSA will exclude care solely based on the UR determination.  For example, a prescription medication will not be allocated in the MSA when a UR determination supports denial.
  • Claimant Statements and Agreements Considered – Consideration of claimant statements and settling party agreements concerning future medical care.
    • CMS will not usually exclude the cost of care from an MSA for a procedure or device, such as a spinal cord stimulator, based on a claimant’s statement that they will not pursue that care. Yet that statement or an agreement among the parties that certain medical care is disputed and not included in the settlement, is sufficient for a Non-Submit MSA. For example, evidence of the claimant repeatedly refusing surgery will usually result in its exclusion from the MSA.
  • Professional Administration Recommended: Except for minor MSA allocations, Tower strongly recommends having a professional administrator manage the Non-Submit MSA funds. If CMS ever questions the use of these funds, proper administration will confirm they were spent properly, enabling a seamless transition to Medicare for payment if the funds run out. And, Tower proudly partners with Ametros for professional administration of all MSAs: Non-Submit MSAs and those that are CMS-approved.

Depending on the facts of the case, a Non-Submit MSA can have a significantly lower allocation than a CMS-approved MSA and still reasonably consider Medicare’s interests.  Nonetheless, using a Non-Submit MSA poses risks to the settling parties that should be fully considered and accepted prior to settlement.

Tower offers free consultations on Non-Submit MSAs. If you have any questions about these or other areas of Medicare Secondary Payer compliance, please contact Dan Anders, Chief Compliance Officer, at or 888.331.4941.

Attend the Virtual MSPN Annual Conference!

Posted on August 23, 2021 by Daniel Anders

The National Medicare Secondary Payer Network (MSPN) will hold its virtual MSPN Annual Conference on September 29 and 30.  With the theme of the Roaring ‘20s, the conference celebrates surviving, revamping, and emerging stronger.

MSPN is the only national MSP organization with an influential membership base of claims adjusters, insurance carriers, life care planners, Medicare Set-Aside allocators, nurses, and other medical professionals. Attorneys, professional administrators, self-insured employers, settlement planners, social workers, structured settlement brokers, and third-party administrators are other prominent members. If you’re one of those, work for a self-insured employer, or are reading this post, you should attend.

Open to non-members, the MSPN Annual Conference is designed for insurance, healthcare, financial services, and litigation professionals whose business touch MSP compliance directly or tangentially.  The conference applies for continuing education for multiple licenses and certifications in insurance, case management, legal, disability, nursing and other medical, and disability management fields.

Presented by national leaders in MSP compliance, representatives of CMS and its contractors, the annual meeting examines various aspects of Medicare Secondary Payment.  Sessions dive into Medicare Set-Asides, the recent PAID Act, MSP compliance in Liability, legislative updates, the coming Civil Monetary Penalties for incomplete or inaccurate Section 111 reporting, post-settlement overview, and other timely topics.

CMS Directors and executives from its contractors explain its conditional payment recovery reimbursement and appeals processes in separate presentations. These give you a chance to hear from the folks who make the MSP decisions that determine our compliance.

Plus, Tower’s Chief Compliance Officer and MSPN President Dan Anders (that’s me) will host a lively Fire Side chat with Jackie Cipa, Deputy Director, CMS Division of MSP Program Operations and Steve Forry, CMS Division Director for MSP Program Operations. They will share meaningful takeaways from this year’s annual meeting and highlight emergent issues in the MSP universe.

You can find plenty of information on MSPN’s website about the conference along with early registration fee discounts (Available before Sept. 1).  Remember, the conference is virtual, September 29 and 30 (As the conference is virtual, all sessions will be recorded and may be viewed post the set conference days).  Don’t delay! Register today!

If you have questions about the MSPN or its annual meeting, do not hesitate to contact me at or (888) 331-4941.

PAID Act Implementation How-to Guide Webinar, Sept. 15

Posted on August 18, 2021 by Tower MSA Partners

Join Tower’s Webinar for PAID Act implementation “How to Guide”  on September 15th.

Because of the PAID Act, self-insured employers, insurers and other non-group health plans will finally have access to Medicare Part C Advantage Plan and Part D prescription drug plan information for Medicare beneficiary claimants, starting December 11, 2021. The Centers for Medicare and Medicaid Services (CMS) will provide the data through the Section 111 reporting query process.

While the implementation of these PAID Act requirements is a technical one, it gives rise to many policy questions as to what payers are required to do once they have this data.

Join Dan Anders, Chief Compliance Officer and Jesse Shade, Chief Technology Officer on Wednesday, September 15 at 2:00 PM ET, for a webinar which will tackle both the technical and policy implications around the PAID Act.  Topics include:

  • The Part C and Part D plan identification problem the PAID Act is designed to resolve.
  • Technical changes needed to receive this new CMS data come December.
  • Best practices for handling Part C and D plan data to resolve reimbursement claims from these plans.

Dan and Jesse will describe the steps Tower has taken to ensure our Section 111 reporting clients have a seamless transition to receive the PAID Act data and how Tower can work with you to identify and resolve Part C and D plan reimbursement claims.

A Q&A session will follow the presentation.  Please click the link below and register today!


Related Prior Posts:

PAID Act Becomes Law

CMS to Host Webinar on PAID Act Implementation and Upcoming Testing

Posted on August 12, 2021 by Daniel Anders

On Thursday, September 9, 2021, at 1 p.m. ET the Centers for Medicare and Medicaid Services (CMS) will be hosting a second webinar on the implementation of the Provide Accurate Information Directly (PAID) Act.  Per the notice:

CMS will be hosting a second webinar regarding the impacts to Section 111 Non-Group Health Plan (NGHP) Responsible Reporting Entities (RREs) related to the PAID Act, which was signed into law on December 11, 2020. The intention of the PAID Act is to help NGHP RREs better coordinate benefits by providing beneficiary Part C and Part D enrollment information via updates to the Section 111 Query Response File. These changes will go into effect on December 11, 2021. This webinar will offer important PAID Act reminders and focus on the details of the upcoming testing period, which will begin on September 13, 2021. The webinar presentation will be followed by a live question and answer session with staff from CMS and the Benefits Coordination & Recovery Center.

Check out slides from the first CMS Provide Accurate Information Directly Act webinar.

If you are a Tower Section 111 reporting client, we recently provided a draft query response file layout.  This layout incorporates the additional fields required to receive Part C and Part D enrollment information and Part A and Part B effective and termination (if applicable) dates.  Tower will initiate testing with the BCRC in September and make changes, if any, to the final file layout before the December 2021 implementation.  Additionally, Tower’s next quarterly webinar (date and time to be announced soon), will address PAID Act implementation and best practices for resolving reimbursement claims from Part C Medicare Advantage and Part D Prescription Drug Plans.

We encourage anyone involved in the Section 111 reporting process to attend the CMS webinar.

If you have any questions, please contact Tower’s Chief Compliance Officer, Dan Anders, at or 888.331.4941.

Related Prior Posts:

CMS: PAID Act Implementation Guidance & New ORM Termination Option

PAID Act Becomes Law


Technology Drives Better Medicare Secondary Payer Compliance

Posted on August 4, 2021 by Tower MSA Partners

Build a better tower with Technology       Building a Better Tower – Through Technology

You may not think about the technology that drives Tower’s Medicare Secondary Payer compliance and Medicare Set-Aside preparation services very often – and that’s understandable.  You may like our simple user interface or the proactive communication our software generates to identify issues, make recommendations, and drive MSA optimization, or appreciate the S111 Management Dashboard, all without thinking about the technology behind the scenes.  That’s ok because we think about it everyday.  In fact, Tower’s  CEO Rita Wilson put technology front and center when she and co-founder Kristine Dudley started the company, automating much of the MSP compliance and MSA preparation operations, quality assurance, and analytics for maximum efficiency, accuracy, and productivity.

With cybersecurity in the news and hurricane season upon us, we wanted to remind you that Tower has you covered in these areas, as well.  Tower stores and manages all data, both internal and client information, securely via a cloud management partner, and has a dedicated “hot site” disaster recovery backup to ensure business continuity should our primary data center fail. For us, business continuity means Section 111 reporting, conditional payment negotiation and resolution, MSA triage, clinical interventions, final preparation, and submission all go on.

“Hurricanes do not affect Tower’s systems, data or internal processes,” Rita explained. “We have employees based all over the country, and before a hurricane impacts our Florida headquarters, our local employees have safely relocated to areas where they can continue to do their jobs with the assurance that the network, infrastructure and cybersecurity protection will be available.  If a natural disaster strikes our primary data center location, an automatic process fails over to our private hot backup site.”

Tower had mastered the IT infrastructure to support a remote workforce long before COVID-19. Aware of steadily increasing cybersecurity threat over the last several years,  the company had already secured Vigilant Technology Solutions’ services for 24/7 monitoring, intrusion detection and prevention.  With VPN access that included multi-factor authentication and secure computer and telephone systems in place, it took less than two hours for employees to transition to work from home

Tower’s complex technology is overseen by Jesse Shade, who was recently promoted to Chief Technology Officer.  This was Jesse’s third promotion in less than four years, which says a lot about how we feel his contributions and talents. Last year, Jesse designed our S111 dashboard to help clients avoid the upcoming penalties associated with erroneous or late reporting and to provide end-to-end visibility to your claims.

This year Jesse worked closely with Rita to secure our SOC 2 Type II attestation.  The SOC 2 audit is designed to give clients and prospects a level of assurance as to how a company organizes and executes its business processes and technology in a structure that provides security, privacy, and confidentiality.

It is one thing for Tower to protect our data and yours, but a major data vulnerability occurs during data transfer between Tower and its business partners.  To ensure that all data exchanged between Tower and any outside entity remains secure, we implemented a third-party risk assessment program to assess and monitor ourselves and our business partners to ensure that privacy, security and cybersecurity best practices are consistently followed.

In addition, Tower is committed to educating clients and other stakeholders.  We hosted a webinar on cybersecurity for our clients and published articles in WorkCompWire last year to help educate others in the industry.

Technology changes all the time, and Tower stays abreast of these changes, always seeking new ways to build a better Tower and a better way to serve the MSP community.  If you have questions about this article or technology in the industry, please contact Rita Wilson, or Jesse Shade,

For Media Inquires, Contact:

Helen King Patterson

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