MSP Compliance Blog

On October 13, 2022, the Centers for Medicare and Medicaid Services (CMS) withdrew its proposed rule on future medicals in liability settlements from review by the White House Office of Information and Regulatory Affairs (OIRA review and approval is required before a proposed rule is published).

While never published to the public, the proposed rule was expected to provide guidance regarding obligations associated with future medical items in liability cases. It was commonly believed these obligations would include the use of a Liability Medicare Set-Aside (LMSA), similar to MSAs used in workers’ compensation, in certain situations.

What is uncertain now is whether a proposed rule around LMSAs will be reworked and resubmitted to OIRA for consideration soon or whether CMS is closing out regulations around liability settlements and future medicals for the foreseeable future. This is the second time CMS has withdrawn a rule on LMSAs, with the first withdrawn in 2014.

Practical Implications

While the lack of guidance around future medical obligations to CMS may have frustrated parties to liability settlements, these parties could have been even more frustrated if CMS had issued rules. As it is, parties in liability cases continue to have much more discretion in determining how to best consider Medicare’s interests in future medicals at the time of settlement than do parties in workers’ compensation cases.

What should settling parties do, given that no CMS LMSA review policy or process currently exists? Please reference Tower’s “Navigating Through the Fog: Medicare, Future Medicals & Liability Settlements” as a starting point. Of course, always feel free to contact me, Dan Anders, for consultation at Daniel.anders@towermsa.com or 888.331.4941.

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Technology isn’t everything.  It may seem hard to believe that I have said this because most of my career was steeped in technology.

In my past life, I developed automation systems for pharmacies and workers’ comp pharmacy benefit management (PBM) models. Rules-based adjudication platform allowed for automatic Rx fills for many prescriptions, but also supported trigger-based escalation for the outliers to request authorization or have an expert take a closer look. The time saved and convenience provided were astounding.

When we started Tower, Kristine Dudley and I automated much of the paper-intensive world of Medicare Set-Asides, and also integrated the 3 major components of Medicare Secondary Payer compliance, Section 111 Mandatory Insurer Reporting, Conditional Payments and Medicare Set Asides, into a single platform. I believe we were the first to do that.

Our platform, Tower’s MSP Automation Suite, was built based on state workers’ compensation statutes overlayed with WCMSA guidance, metrics-based KPI tracking and intervention / escalation triggers that supported MSP best practices.  By seamlessly integrating Section 111 reporting, conditional payment resolution, and MSA preparation into a single, all-encompassing system, our MSP Automation Suite ensures that nothing drops through the cracks, no field goes unpopulated, problem cases can be identified, and deadlines are met.

Tower’s MSP Automation Suite captures, stores and manages all data points, integrates with ANY claims system, enables clients’ business rules to be overlaid onto ours, and gives our clients end-to-end visibility into Medicare and claim information.  Our system also leverages embedded triggers to escalate medical and pharmacy issues, prompting a review for intervention. In short, Tower’s MSP Automation Suite leverages the best of automation until technology intersects with the need for expertise.  This allows our team to manage, track and drive MSP compliance from the moment a Medicare beneficiary is identified through the claim’s closure.

Do we love automation?  You bet we do.

But we realize automation can’t do everything. MSP compliance has always – and will always – require a high degree of consultative expertise. You can’t just capture and populate data fields, and automatically “pop” out an MSA that supports aggressive cost mitigation that is both CMS-approvable and facilitates settlement.

While many workers’ compensation claims move through the system seamlessly, others are “messy”.  Body parts may be denied, additional claims may exist, co-morbid conditions may complicate treatment, surgeries, medical treatment and medications may be prescribed inappropriately or ICD10 codes may be too general or inconsistent with the treatment being paid by the carrier.  These are just a subset of the rules-based triggers built into our system so that claims warranting attention are automatically escalated to a human expert to dig through files, examine causation questions, and probe open-ended medical care and contradictory medical records.

Clients need their calls, emails and questions answered by real people, and quickly. Complex conditional payment matters call for conversations … with a knowledgeable partner who shares your goals.

Our automated system escalates medical and pharmacy issues, but then you need a professional with specialized knowledge and experience to recommend the best intervention.  And to implement it.

One of our most effective interventions created by Tower is our Physician Follow-up. Guess what? This is performed by people, people who have the patience and commitment to keep trying to talk to the provider. If you’ve tried to call and talk to your own doctor lately, you know what a challenge this can be.

These professionals have the knowledge and soft skills needed to delicately point out vague notes and open-ended recommendations in medical records. And they must be able to persuade the provider to clarify their treatment and prescriptions. Drafting a jurisdiction-specific statement for the provider to sign requires yet another human skill set.

If I had to name the one aspect that drives Tower’s success, I’d have to say service.  Our technology enables us to respond quickly, anticipate issues, and proactively address them, but it’s the people, their attitudes, and their expertise our clients value the most. 

The common thread in our client testimonies are service and partnership. Clients are “very impressed with [Tower’s] level of communication and availability to help answer questions,” and they say, “they truly listen; listen to understand and not just to respond.”

Perhaps this person sums things best: “They have advanced technology and certified specialists to ensure no stone is unturned.”

Insurance carriers, self-insureds and TPAs are dealing with shortfalls in staffing.  There’s more pressure on the experienced adjusters, and the new hires need all kinds of support to get up to speed on MSP matters.  Tower MSA Partners is here to help. That’s what the Partners part of our name means.

We are proud of our technology, and we recognize when to leverage it and when automation must give way to consultative expertise. There is a need for partnership with real people who care about your claim closure and settlement and can ensure that happens with the right balance of care, cost and compliance.

If you have any questions or just want to talk about partnership opportunities, the expertise of our people, or our technological capabilities contact me at rita.wilson@towermsa.com.

The workers’ compensation industry has extolled the promises of data analytics and automation for years.

But how are organizations really using claims data?  What strategies have worked best? And what have they learned?  Several executives will share their experiences during WCI-TV interviews sponsored by Tower MSA Partners.

Guests include Dave Strange, the Yellow Corporation’s Workers’ Compensation Manager and Greg Hamlin, Senior Vice President, Resolution with Berkley Industrial Comp. Ametros CEO Porter Leslie and Alisa Hofman, Vice President of Workers’ Compensation and Medicare Practices for Arcadia will discuss the use of data during and after settlement.

In addition, Tower’s Chief Compliance Officer Dan Anders and Chief Operations Officer Kristine Dudley will share how the technology driven company uses data to streamline Medicare Secondary Payer compliance, protect clients from penalties, and optimize Medicare Set-Asides.

Tower has been the exclusive sponsor of WCI-TV since it first aired in 2015. WCI-TV airs throughout the convention center, in hotel guest rooms and shuttles, on You Tube and CI’s website. Tower’s interviews will also be shared on the company’s LinkedIn page.

 The 76^th Annual WCI Conference will be held August 21-24 at the Orlando World Center Marriott. For more information, please see https://www.wci360.com/conference/.

A common question we receive is whether a CMS-approved $0 MSA is still possible.  The answer is, yes– if it meets the criteria.

There are three different ways a $0 MSA can be obtained, each with its own criteria and documentation requirements.

Denied Claim $0 MSA

This is a $0 MSA based on a completely denied workers’ comp claim when no payments have been made for medical treatment or indemnity.  In certain jurisdictions, such as California, some medical payments can have been made during a statutory investigating period. Payments for non-treatment purposes such as IMEs, case management and medical records copies do not impact the ability to obtain a $0 MSA approval.

This type of $0 MSA has significant documentation requirements:

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. This printout needs to include the print or run date.
• If the claim payment history does not meet the above requirements, then Tower will work with you to identify alternative documentation that meets CMS requirements.

2. 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). CMS recently added a requirement that there must be a proposed or agreed-to settlement.  Importantly, while CMS requires a proposed settlement, it will reject the $0 MSA if the settlement is finalized, for example with court or commission approval, before CMS’s review and approval of the $0 MSA.

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

4. Financial Detail and Denial Letter – At the time of submission Tower will draft a letter for the client to sign that confirms the denial of the claim and any other necessary explanations, such as why no First Report of Injury is available.

5.  Medical Records:  As with a regular MSA, medical records for the past two years must be provided with the submission.

6. CMS Consent to Release form executed by the claimant.

Accepted Claim $0 MSA 

This is a $0 MSA based on medical documentation supporting no further need for injury-related treatment.  In the WCMSA Reference Guide, CMS provides as follows:

The individual’s treating physicians conclude (in writing) that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the WC injury.

In practice, CMS accepts treating physician statements that say the injury-related treatment has resolved or returned to baseline (when there was a pre-existing condition) and that no further injury-related treatment will be necessary as sufficient to support the $0 MSA.

Keep in mind that CMS will not accept the physician’s statement unless it is consistent with the treatment records/notes.  For example, if the physician states the injury-related has resolved, but treatment notes document ongoing pain to the relevant body part, CMS is unlikely to approve a $0 MSA.  Also, if the injured worker will require a revision or replacement to a body part, e.g., a knee replacement, a $0 MSA will not be approved.

In addition to the physician statement, a claim payment history, medical treatment records and an executed Consent to Release are required.

Judicial Decision $0 MSA

CMS will accept a judicial decision after a hearing on the merits of the case as a basis for a $0 MSA.  This can be on a completely denied claim where the judge upholds the denial of the claim or an accepted claim where the judge finds future medical treatment, if any, is unrelated to the work injury.  The key here is the decision is “on the merits.”  If it in any way looks like an agreement between the parties and the judge just stamped their approval, CMS will not accept it.

In addition to the judicial decision, a claim payment history, medical treatment records and an executed Consent to Release are required.

While there are strict documentation requirements, these $0 MSA 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.

The latest episode of the popular ADJUSTED podcast features our Chief Compliance Officer Dan Anders on one of his favorite topics, Medicare Set-Asides. When are they needed? How do you mitigate their costs? What’s the deal with rated ages? Host Greg Hamlin and Guest-host Matt Yehling, Director of Claims at Midwest Employers Casualty wanted to know.

The hosts posed the all-important question of when should workers’ comp claim with a Medicare beneficiary claimant be settled: now, later or not at all? Dan guides listeners through the various elements to consider when coming to this decision. Is the Medicare beneficiary’s condition stable? Is surgery imminent? Are they still tapering off certain medications? Are there ways to lower costs without compromising care? What are the barriers to Centers for Medicare and Medicaid (CMS) approval?

While talking about ways to mitigate costs, Dan stresses the need to obtain physician statements to clarify treatment, including which medications are discontinued. CMS requires the costs for these to be included in the MSA unless changes are documented in certain ways. Tower’s Physician Follow-up service does this and has been used on nearly half of our CMS-submitted MSAs.

If you’re new to MSAs or need to know more about reducing their costs, this podcast is for you. Find it on Apple, Google, Spotify, other platforms and here: Medicare Set Asides with Dan Anders (buzzsprout.com).

Even better, you’ll learn a little more about Dan. Did you know he considered a career in politics?

Produced by Berkley Industrial Comp, ADJUSTED presents interviews with experts on a variety of topics touching workers’ comp. Other recent episodes on settlement issues were Ametros’ Andrea Wells and Brad Cantwell with Arcadia Structured Settlements. Visit the Berkley Industrial Comp blog for these and more.

MSAs are complicated and confusing—they even stump the specialists at times. Sometimes you just need to talk to an expert in a certain area. If you ever have a question about an MSA, Dan is happy to talk to you. Get in touch with him at Daniel.anders@towermsa.com.

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