MSP Compliance Blog

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

Premier Webinar: WC Settlements in Light of CMS Policy on Non-Submit MSAs

Posted on January 25, 2022 by Tower MSA Partners

The Centers for Medicare and Medicaid Services (CMS) recent policy statement which considers non-submit/evidence-based MSAs “as a potential attempt to shift financial burden” to Medicare left many questions in its wake (See CMS: Non-Submit MSAs Potentially Shift Costs to Medicare).  It has triggered many payers, along with injured workers and their attorneys, to reconsider the choice to avoid the CMS MSA review and approval process.

On Thursday, February 3 at 2:00 PM ET, Tower’s Chief Operations Officer Kristine Dudley and Chief Compliance Officer Dan Anders will address the many questions which arise out of this announcement and walk attendees through how a move from a non-submit to submit MSA program can still yield cost-effective settlements with the added protection of CMS approval.

Here’s just some of what you will learn:

  • Background on CMS policy on submit vs. non-submit MSAs and what it means for the future of MSAs
  • Potential defenses to CMS claim that a non-submit MSA was deficient
  • A how-to guide to transition from non-submit to submit MSA program which still settles WC cases
  • Tools available to contain MSA costs whether the MSA is submitted or not

While the webinar focus is on those that have primarily pursued a non-submit MSA course, portions on MSA cost containment and ensuring the availability of MSA funds over a lifetime are important to submitters and non-submitters alike.

A Q&A session will follow the presentation, and you can send your questions to now. Please click the link below and register today!

Register here

Tower’s Dan Anders Reviews MSP Policies from Last Year and Predicts 2022 Actions

Posted on January 20, 2022 by Tower MSA Partners’s Nancy Grover captured the thoughts of Tower’s Chief Compliance Officer Dan Anders on a variety of Medicare Secondary Payer and Medicare Set-Aside issues from 2021 and 2022 in a recent article.  MSAs cost less than you think, opioid allocations are down, and the PAID Act makes obtaining Medicare Advantage Plan data easier. Plus, the Centers for Medicare and Medicaid Services flat-out said that MSAs that are not approved by CMS could be “a potential attempt to shift financial burden” to Medicare.

The article, “MSA Policy Updates, Changes Likely in Store for 2022, Expert Predicts,” can be read here. Remember it’s just a one-time process of subscribing to this free section of

CMS: Non-Submit MSAs Potentially Shift Costs to Medicare

Posted on January 13, 2022 by Daniel Anders

The Centers for Medicare and Medicaid Services’ updated Workers’ Compensation Medicare Set-Aside Reference Guide (Version 3.5) has a new section on the use of “Non-CMS Approved Products to Address Future Medical” that says CMS views non-submit/evidence-based MSAs “as a potential attempt to shift financial burden” to Medicare.  Below is the new section followed by key takeaways and Tower answers to questions stemming from the new policy.

4.3 The Use of Non-CMS-Approved Products to Address Future Medical Care

 A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries. Although not inclusive of all products covered under this section, these products are most commonly termed “evidence-based” or “non-submit.” 42 C.F.R. 411.46 specifically allows CMS to deny payment for treatment of work-related conditions if a settlement does not adequately protect the Medicare program’s interest. Unless a proposed amount is submitted, reviewed, and approved using the process described in this reference guide prior to settlement, CMS cannot be certain that the Medicare program’s interests are adequately protected. As such, CMS treats the use of non-CMS-approved products as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement.  

As a matter of policy and practice, CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses. This will result in the claimant needing to demonstrate complete exhaustion of the net settlement amount, rather than a CMS-approved WCMSA amount.

Key Takeaways

  1. CMS specifically speaks to evidence-based / non-submit MSAs for the first time in the reference guide.
  2. CMS will treat the use of non-CMS approved products as a potential attempt to shift the financial burden to Medicare, calling this process “improper”
  3. As a matter of “policy and practice,” CMS will deny payment for medical services related to WC injuries until total settlement has been exhausted. 
  4. CMS does not limit this to future MSAs only…this could impact existing non-submit MSAs.

Questions and Answers

Does this represent a change in CMS policy toward non-approved MSAs?

No. As mentioned in other sections of the reference guide, CMS has consistently stated that when an MSA is not approved, Medicare may deny related medical claims or pursue recovery for related medical claims that Medicare paid up to the full amount of the settlement.

What CMS does do in this version of the reference guide is to directly address evidence-based and non-submit MSAs along with MSA vendor indemnifications that sometimes accompany such MSAs.  It presumes non-CMS-approved products may represent a cost-shift to Medicare.

This presumption then leads to their next statement in which they indicate the claimant will need to demonstrate complete exhaustion of the net settlement amount before CMS will pay primary for injury-related medical care.  Consequently, this could mean that even with an MSA, the claimant would need to access their settlement funds to pay for future injury-related medical care.

Is Section 4.3 applicable to all MSAs ever done or prospective MSAs?

There is no indication that this policy only applies to future MSAs and settlements.  Consequently, unless CMS says otherwise payers should assume that CMS takes this position for any settlement whether past or future.

If a non-submit MSA was used to settle a case does the beneficiary have cause for concern?

Keep in mind that CMS involvement is only triggered when Medicare is requested to pay for injury-related medical care.  If the MSA amount sufficiently pays for such care, then the beneficiary does not have to worry. However, if the MSA amount is exhausted, then CMS has made it clear that it will deny payment.

What happens if the claimant wants to dispute the denial?

The claimant Medicare beneficiary has a statutory right to appeal Medicare’s denial.  Presumably, the beneficiary or someone on their behalf will need to submit an appeal.  The appeal would assert that the non-submit or evidence-based MSA was reasonable at the time of settlement.  The outcome of this is uncertain as to date CMS has not routinely denied medical care in settlements involving non-submit and evidence-based MSAs.

If a non-submit MSA was utilized to settle a case does the payer have cause for concern?

If the payer provided some type of indemnification or guarantee or is otherwise open to liability for a failure to properly fund future medical, those provisions may be tested.

What about non-submit MSAs that could not be submitted because the CMS MSA review threshold was not met?

If CMS was to deny payment in these cases the Medicare beneficiary could rebut the denial based on the reasonableness of the MSA at the time of settlement and on the basis that there was no CMS WCMSA review process available to ascertain whether the amount appropriately addressed Medicare’s interests.

How does this affect my MSA program?

If you have a program that largely obtains CMS MSA approval when review thresholds are met, then Section 4.3 is not relevant except for MSAs that were under threshold. (However, I believe Section 4.3 targets settlements that meet CMS MSA review thresholds.)

On the other hand, if you have maintained a program that largely does not submit MSAs to CMS for approval, then the risk of MSA exhaustion and denial of injury-related medical is real.

Tower recommends taking a critical look at whether non-submit/evidence-based MSAs remain the best policy for you and the injured worker.  Once plaintiff attorneys review this policy, they may not consider a non-CMS-approved MSA sufficient to protect their client’s access to Medicare for injury-related care in the future.

Cost-Effective CMS-Approved MSAs are Possible

The non-submit MSA route has usually been taken based on an assumption that all CMS-approved MSAs contain unrealistic allocations.  While there are some of those, Tower has found that MSA costs can be contained so that a CMS-approved MSA can pave the way to settlement.  We do this through a clear understanding of CMS’s MSA pricing methodology and knowing exactly what will lead to MSA increases or development letters that delay CMS MSA approval.  Tower proactively obtains records and physician statements or works with our clients to do this so cases can be settled without concern that CMS may deny payment for future injury-related medical care.

Please contact Chief Compliance Officer, Dan Anders, with any questions about this or any other MSP compliance issue at or 888.331.4941.

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Tower’s Dan Anders Says “It’s Still OK to Submit and MSA”



CMS Releases Updated Section 111 NGHP User Guide

Posted on December 28, 2021 by Daniel Anders

The Centers for Medicare and Medicaid Services (CMS) has released Version 6.6 of its Section 111 NGHP User Guide.  Below is a summary of the notable updates and practical implications.

Funding Delayed Beyond TPOC Start Date Field

Last month we discussed an 11/03/2021 Alert from CMS on the use of Field 82 Funding Delayed Beyond TPOC Start Date.  Field 82, per the Section 111 User Guide, is to be used in specific circumstances where the amount the claimant Medicare beneficiary is to be paid is not known at the time the settlement occurs.  Per CMS, this happens most often in mass tort settlements.

As we previously related, the CMS Alert is confusing when it refers to the date settlement funds are “dispersed.”  CMS seems to assume that the date inserted into Field 82 is not only the date that the settlement amount is determined but is the same date the funds are dispersed. However, these dates may be weeks or months apart.  Our recommendation was to place the date settlement funds are dispersed in Field 82.

In its update to the User Guide, CMS now acknowledges this as the correct use of Field 82.  Specifically, CMS states (Chapter III: Policy Guidance): Timeliness of Reporting

NGHP TPOC settlements, judgments, awards, or other payments are reportable once the following criteria are met:

  • The alleged injured/harmed individual to or on whose behalf payment will be made has been
  • The TPOC amount (the amount of the settlement, judgement, award, or other payment) for
    that individual has been determined.
  • The RRE knows when the TPOC will be funded or disbursed to the individual or their

RREs should retain documentation establishing when these criteria were or will be met. RREs

should not report the TPOC until the RRE establishes when the TPOC will be funded or

disbursed. In some situations, funding or disbursement of the TPOC may not occur until well

after the TPOC Date. RREs may submit the date the TPOC will be funded or disbursed in the

corresponding Funding Delayed Beyond TPOC Start Date field when they report the TPOC Date

and TPOC Amount, but must do so if the TPOC Date and date of the funding of the TPOC are

30 days or more apart.

Timeliness of MMSEA Section 111 reporting for a particular Medicare beneficiary will be based

upon the latter of the TPOC Date and the Funding Delayed Beyond TPOC Start Date.


There is a settlement involving an allegedly defective drug where a large settlement is to be

disbursed among many claimants.

The settlement provides a process for subsequently determining who will be paid and how much.

Consequently, there will be payment to or on behalf of a particular individual, but the specific amount of the settlement, judgment, award, or other payment to or on behalf of that individual is not known as of the TPOC Date. RREs are to submit the date of the settlement in the TPOC Date field and the amount of the settlement in the TPOC Amount field.

In this example, the determination of the TPOC Amount, as well as the funding or disbursement of the TPOC, will be delayed after the TPOC Date. Once the TPOC Amount and the date when the TPOC will be funded or disbursed are determined, the RRE should submit the record with the appropriate date in the corresponding Funding Delayed Beyond TPOC Start Date field.

Practical Implications

What CMS is getting at here is they want to know when the claimant receives the settlement funds so they can correctly time their recovery efforts.  For Responsible Reporting Entities (RREs) this means if payment will be delayed more than 30 days post the TPOC date, then they must hold off on Section 111 reporting until the date the settlement funds will be disbursed has been identified.

We note that while CMS expects the above rule to apply to mass tort settlements, there are certainly cases, both liability and workers’ compensation, where funding may be delayed more than 30 days beyond the TPOC date.   Thus, we believe the effect of this update on the “Timeliness of Reporting” rule will likely be much wider.

In terms of making this simpler for those entering the TPOC information, if the disbursement of settlement funds commonly occurs more than 30 days post-TPOC date, it may be easiest to always enter a date in the corresponding Funding Delayed Beyond TPOC Start Date field along with the TPOC Date and TPOC Amount, whether less than or more than 30 days from the TPOC date.

Updates to No-Fault Policy Limit

Also last month we discussed another CMS Alert reminding RREs where, depending upon state law or the terms of a given policy, the no-fault policy limit may vary.  The Alert reminded RREs to update to the new policy limit as quickly as possible, including the use of an “off-cycle” report (A report made in addition to the required quarterly reporting).  In our analysis of this Alert, we expressed concern as to whether such “off-cycle” reporting is mandatory or recommended.  In other words, if mandatory and not done, that it would be considered non-compliance and potentially subject the RRE to penalties.

The updated User Guide CMS states as follows (Chapter III: Policy Guidance, Section

Note: In some states, depending on various factors associated with the incident being reported, no-fault policy limits may vary. The reported Policy Limit should reflect the amount the RRE has accepted responsibility for at the time the record is submitted or updated. Just as importantly, if the Section 111 record needs to be corrected to reflect a new Policy Limit, the RRE should update the record as soon as possible.

Practical Implications

While CMS states the RRE should update the record as soon as possible, there is no reference to “off-cycle” reporting.  We assume that while “off-cycle” reporting is preferred, that proper compliance will be determined based upon the quarterly report which includes the updated no-fault policy limit.

$750 Threshold Maintained for Section 111 Reporting and Medicare Conditional Payment Recovery

In a December 15, 2021, Alert CMS announced the 2022 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).

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.

If you have any questions regarding these updates, please contact Dan Anders at or 888.331.4941.






A Holiday Wish from Tower MSA Partners

Posted on December 22, 2021 by Tower MSA Partners

Earlier this year Tower MSA Partners celebrated its 10th anniversary. As 2021 comes to a close we again thank you, our client partners, for your support and loyalty, some for all of those 10 years and some for only the past few months.  Your trust in us to provide MSP compliance services and settlement solutions is never taken for granted . . . nor do we rest on our laurels.

The Tower team looks forward to launching into a new year with new initiatives and enhancements to provide you the best in customer service, systems and controls which keep client data secure from cyber threats and a commitment as your partner to help settle claims that provide the best in care, cost and compliance.

Our wish to you is a safe, happy and healthy holiday season filled with warmth and laughter.  Merry Christmas and best wishes in the new year.


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