MSP Compliance Blog

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

Proposed PAID Act Intends to ID Medicare Part C, Part D and Medicaid Enrollees for Insurers

Posted on June 1, 2018 by Daniel Anders

On 5/18/2018, the Provide Accurate Information Directly Act (or the proposed PAID Act) was introduced in Congress for the purpose of allowing settling parties an easy method to identify if a claimant is enrolled in a Part C or D plan or Medicaid.  The bill, H.R. 5881, sponsored by U.S. Rep. Gus Bilirakis R-Fla and U.S. Rep. Ron Kind, D-Wisc, requires the Centers for Medicare and Medicaid Services (CMS) to share information on not only whether a claimant is a Medicare beneficiary, but also whether the claimant is enrolled in a Part C Medicare Advantage (MA) Plan, Part D Prescription Drug Plan or Medicaid.  It also requires CMS to provide the identity of the MA or Part D Plan or state Medicaid program in which the claimant is or was enrolled.

The catalyst for this legislation comes from stepped up efforts by these various plans and programs, especially by MA Plans, to seek reimbursement from settling parties. MA Plans have largely prevailed against insurance carriers in seeking reimbursement under the Medicare Secondary Payer Act which has led to a heightened awareness of the potential for such claims and the need to identify claimants enrolled in such plans and programs prior to settlement.

While liability and no-fault carriers and workers’ compensation plans are now on notice of the potential for such reimbursement claims, there presently exists no universal method to identify a claimant’s enrollment status, short of asking the claimant.  Accordingly, the bill provides a solution by requiring CMS to share such enrollment information.

A review of the proposed PAID act shows the enrollment information would be shared through the Section 111 Mandatory Insurer Reporting query process.  In short, along with identification of whether a claimant is a Medicare beneficiary, the query response would also provide whether the claimant is or has been enrolled in a MA or Part D Plan or a state Medicaid program for the past three years and the name of the plan or program.  The insurance carrier or self-insured entity would then be able to readily contact the Part C or D plan or Medicaid program to resolve any claim for reimbursement.

The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce for further action.  Tower MSA Partners will provide updates on the legislation when warranted.

Transition From Provider Resources to Capitol Bridge: 45 Day Update

Posted on May 7, 2018 by Daniel Anders

On March 16, 2018, Capitol Bridge took over responsibility from Provider Resources as the Centers for Medicare and Medicaid Services’ (CMS) Workers Compensation Review Contractor (WCRC) (See New CMS MSA Review Contractor: Different Name, Same Policy and Procedures). The WCRC is responsible for reviewing all Workers’ Compensation Medicare Set-Asides (WCMSAs) submitted to CMS by providing a recommendation as to whether the WCMSA should be approved as proposed or increased or decreased. CMS then issues a determination letter based upon that recommendation.

We are now 45 days into the new WCRC contractor and have sufficient results from our MSA submissions to report on what has changed and what has remained the same:

Review Time: The prior WCRC was on average completing its review with a determination letter issued within 14 to 21 days from the date the WCMSA proposal was submitted. We were warned on March 7, 2018, CMS webinar introducing the new WCRC that the contractor would be using the full 20 business days allowed for review under the contract with CMS. Indeed, CMS was spot-on, as the time from submission of the WCMSA proposal to receipt of the determination letter now stands at approximately 28 to 30 days.

Development Letters: Development Letters, requests for additional documentation or information, are being issued between 21 and 28 days post-MSA submission, compared to nine and 15 days with the prior contractor. This is consistent with the overall review time of up to 30 days.

While the time for Development Letter issuance has increased, we have only found a slight uptick in the amount of Development Letters being issued. And even this uptick has been caused by Development Letters issued in error, i.e. request for documentation that has already been provided.

Review Policies and Procedures: On the March 7, 2018 webinar CMS advised that there would be no changes to their WCMSA review guidelines with the introduction of the new contractor.

The new WCRC has mostly followed the review guidelines, however, we have found an increase in pricing and frequency errors and the inappropriate addition of medical care on some WCMSA determinations.

Tower MSA can readily identify these errors through its Advanced CMS MSA Reconciliation System. Within 48 hours of receipt of a CMS MSA counter-higher, the following process occurs:

  • A line item comparison is systematically made between the Tower MSA proposed WCMSA and the CMS WCMSA determination to detect changes in pricing, frequency and the addition or modification of medical treatment and medications
  • Tower MSA’s clinical and legal team reviews the reconciliation to determine any reasonable basis for submission of a re-review to CMS.
  • If appropriate, re-review prepared and uploaded to CMS.

Client advised of CMS’s response and whether a re-review has been submitted.

The results and value of this process can be shown in two successful re-reviews from the past month:

  • WCMSA counter-higher as a result of a change in pricing of urine drug screens increased the MSA by $4,245. Tower MSA’s Reconciliation System identified the error in pricing and a re-review request letter was submitted.CMS responded by correcting its error resulting in a WCMSA amount approved as submitted.
  • WCMSA counter-higher as a result of CMS changing a shoulder arthroscopy to a total shoulder arthroplasty, a $23,901 increase to the MSA. Again, Tower MSA’s Reconciliation System, along with the legal and compliance team, identified CMS’s error and a re-review request was promptly submitted. CMS admitted that indeed while a total shoulder arthroplasty had been discussed in the records, the most recent recommendation from the treating physician was for an arthroscopy. The error was corrected and the WCMSA amount was approved as submitted.

In terms of time to complete a re-review, the new WCRC is taking between 16 and 21 days compared to the prior contractor which took between two and six days. The new WCRC should be credited with correcting errors when brought to their attention.

We also applaud the new WCRC for using the most recent state fee schedules in their review of the proposed WCMSA. While CMS guidelines require the most recent fee schedules to be used in the WCMSA, the prior contractor was often using outdated fee schedules, which were up to seven years out-of-date. The result was sometimes inappropriate counter-higher our counter-lower determinations from CMS.

Practical Implications

You can rest assured that if the new WCRC makes an error it will be identified by Tower MSA and a prompt request for correction made. In regard to these recent errors, we expect some of this is to be expected with a new contractor. We have already seen corrections made in pricing and frequency of allocated treatment since the initial WCMSA determinations received from the new contractor.

While Tower MSA will address any identified errors, we cannot change the WCMSA review time. As such, you do need to take into account the now 30-day review time in your settlement planning (and potentially an additional 21 days if a re-review is necessary).

All-in-all, the transition to the new contractor has gone smoothly, which is a credit to CMS and Capitol Bridge.

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

Medicare Advantage Plan Hits Speed Bump in Effort to Recover Against Medicare Beneficiary and Her Attorneys

Posted on March 22, 2018 by Daniel Anders

Case law supporting Medicare Advantage Plans (MAPs) reimbursement rights against primary plans (WC, Liability, No-Fault) continues to accumulate with a recent decision from the United States District Court for the District of Connecticut in Aetna Life Insurance Company vs. Nellina Guerrera, et al., Civil Action No. 3:17-cv-621 (3/13/2018). Consistent with other recent decisions on the issue, the court found that the MAP, Aetna, has a right of reimbursement against the primary plan, Big Y, including double damages, if a suit is filed under the Private Cause of Action (PCA) provision of the Medicare Secondary Payer Act. In determining the rights of Aetna under the PCA provision, the court was persuaded by prior appellate court decisions in In Re Avandia, 685 F.3d 353 (3rd Cir. 2012) and Humana v. Western Heritage, 832 F.3d 1229 (11th Cir. 2016).

While the decision represents the first federal court in the Second Circuit to fully address the use of the PCA provision by a MA plan against a primary plan, what is potentially more significant is the court’s holding that MAPs cannot utilize the PCA to sue Medicare beneficiaries or their attorneys, a decision that is inconsistent with other federal court rulings.

Case Background

The case arose as follows:

  • The Medicare beneficiary, Nellina Guerrera, allegedly sustained personal injuries at a Big Y store on 2/20/2015.
  • Ms. Guerrera was enrolled in an Aetna MAO Plan which paid for injury-related medical in the amount of $9,854.16.
  • Ms. Guerrera retained the law firm Carter Mario to represent her in a liability claim against Big Y.
  • Beginning on 9/22/2015, a year before a settlement agreement, Aetna made multiple attempts to provide notice to defendants of their lien.
  • On 3/10/2016 Big Y agreed that it would not send the full amount of any settlement to Ms. Guerrera and her attorneys without first dealing with Aetna’s lien (We assume this may have been an agreement with Aetna).
  • Case was settled for $30,000 with full amount paid to Ms. Guerrera and her attorneys on 9/15/2016 without addressing the reimbursement claim of Aetna.
  • Aetna files suit not only against Big Y, but also Ms. Guerrera, and Ms. Guerrera’s attorneys under the PCA provision of the MSP Act.
Court Decision

The primary questions for the court were whether the PCA provision of the MSP Act is available to MAPs, who may be sued under the PCA (primary plans, Medicare beneficiaries, attorneys) and under what circumstances a suit may be brought. The PCA states as follows:

There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs [(b)](1) and [(b)](2)(A).

The court reached the following conclusions on each question.

Why May Sue Under the PCA?

In reaching its decision regarding who may be sued under the PCA the court cited the appellate court decisions In Re Avandia and Western Heritage as being persuasive in concluding the PCA unambiguously permits suits by MAPs. The court went on to find that even if the PCA was interpreted to be ambiguous, CMS regulations stating MAPs may sue under the PCA would be given deference, thus leading to the same conclusion.

Who May Be Sued Under the PCA?

While the court notes the PCA does not specify against whom a suit may be filed, it cites to Second Circuit precedent which has interpreted primary plans or payers as entities which may be sued under the PCA. The court also finds that Big Y meets the definition of a primary plan under the MSP Act and as such the suit can proceed against it.

Aetna though not only filed suit against the primary plan, Big Y, but also Ms. Guerrera, the Medicare beneficiary, and her attorneys. As to these defendants the court reaches a different conclusion. While admitting that the PCA language is vague, the court nonetheless interprets the Congressional intent as only permitting suits against primary plans. It cites the language “a primary plan . . . fails to provide for primary payment” as what not only triggers the ability to sue under the PCA, but also limits recovery to solely primary plans. The court finds that had Congress intended the PCA to apply to Medicare beneficiaries and their attorneys, it would have created such a cause of action similar to that applicable to primary plans. While the court notes its ruling conflicts with CMS’s interpretation, which would provide MAPs with a right of reimbursement against a Medicare beneficiary and their attorney, the court held it will not defer to CMS’s interpretation in this regard.

In finding that the PCA does not provide for a suit against a Medicare beneficiary or the beneficiary’s attorneys, the court declined to follow other federal court decisions which have found such an action to be viable under the PCA, such as Humana Insurance Company v. Paris Blank LLP.

When is a Suit Proper under the PCA?

In regard to the question as to when a suit is proper under the PCA, the court looks to the term “appropriate reimbursement” and determines that Big Y’s payment to Ms. Guerrera and her attorneys did not amount to appropriate reimbursement when the primary plan has notice of a claim for reimbursement from a MAP. The court goes on to again cite the Western Heritage decision which in turn cites Medicare regulations:

If a beneficiary or other party fails to reimburse Medicare within 60 days of receiving a primary payment, the primary plan ‘must reimburse Medicare even though it has already reimbursed the beneficiary or other party.’ 42 C.F.R. § 411.24(i)(1)

Accordingly, once 60 days passed from the date of payment by Big Y to Ms. Guerrera and her attorneys and no repayment was made to Aetna, Big Y became obligated to reimburse Aetna and subject to a suit by Aetna under the PCA.

Practical Implications of Decision

This decision is at the district court level, thus does not have precedential value which would make it binding precedent as we have in the 3rd (Pennsylvania, New Jersey & Delaware) and 11th (Florida, Alabama & Georgia) Circuits. Nonetheless, it represents the first decision in the 2nd Circuit (Connecticut, New York and Vermont) to completely address MAP reimbursement under the PCA, thus will be used as persuasive authority in future cases both in and out of the 2nd Circuit. While the decision in this case continues the trend of court decisions finding in favor of MAPs rights of reimbursement against primary plans under the PCA, it has diverged with prior decisions in finding suits against Medicare beneficiaries and their attorneys are not allowed under the PCA.

What this means for primary plans is they have a target firmly planted on their backs, especially if future court decisions find MAPs cannot recover against Medicare beneficiaries or their attorneys. We suspect that this issue will eventually be addressed at the appellate court level, if not in this case, then in future litigation.

What steps then can you take as a primary plan to eliminate this risk:

  • Identify Medicare eligible claimants.
  • Determine whether Medicare eligible claimants are or were enrolled in a MAP since the date of injury.
  • If enrolled in a MAP, then investigate whether the plan is seeking reimbursement stemming from the injury.
  • Make arrangements to directly reimburse the MAP for injury-related payments.

Tower MSA is readily available to assist you with our MA Plan investigation, negotiation and resolution service. Please contact us at (888) 331-4941 or for further information or questions.

New CMS MSA Review Contractor: Different Name, Same Policy and Procedures

Posted on March 7, 2018 by Daniel Anders

While the review contractor is changing, the Workers’ Compensation Medicare Set-Aside (WCMSA) review policies and procedures remain the same. This was the message related to attendees of the Workers Compensation Review Contractor (WCRC) transition webinar held by CMS, yesterday, March 7, 2018. The purpose of the webinar was to introduce the WCMSA community to the new WCRC and provide information on the transition from Provider Resources, which ceases its work on March 16, 2018, to Capitol Bridge, which commences its work on March 19, 2018.

John Jenkins, CMS’s Health Insurance Specialist overseeing the WCRC contract, led off the presentation and then turned it over to Holly Haven, Capitol Bridge’s WCRC Project Director. Ms. Havens provided the following key information:

What is Not Changing

  • As our program matures, we will strive to improve both the quality of our work and the timeliness in which cases are completed through automation and our continual improvement focus.
  • The review and decision making process will remain the same.
  • WCMSA proposals will continue to be submitted through the portal or by mail to the same Oklahoma City address.
  • All established timeframes remain the same.
  • All inquiries will be handled by staff in our Pittsford, NY office, and customer service will be a priority.
  • Inquiries may still be communicated via telephone.

In summary, Capitol Bridge will continue to be guided by the guidelines laid out in the CMS WCMSA Reference Guide and maintain the 20-business day turnaround time for review of a WCMSA as required by CMS.

What is Changing

  • Processing of all cases will be handled out of their facility in Pittsford, NY.
  • New phone number for the WCRC is (833) 295-3773 with customer service hours from 9am to 5pm EST.
  • Email address for the WCRC is
  • Fax number is (585) 425-5390

In the Q&A session following the formal presentation additional information was provided:

  • WCMSAs will be reviewed by RNs with the MSCC credential.
  • The WCRC staff includes attorneys, physicians and pharmacists.
  • WCMSA proposals which have not been reviewed by the outgoing contractor by March 16 will be transferred to the new contractor for review.
  • In response to a question as whether to expect an MSA backlog such that review times will lengthen, CMS noted that the outgoing contractor was typically completing its reviews in less than the required timeframe of 20 days.The implication then is the new contractor may be using the full 20 business days to complete its review.
  • A question was raised regarding Liability MSAs, but no answer was given as the webinar was not for the purpose of addressing policy questions.

While the CMS WCMSA policy remains the same, the interpretation and implementation of that policy will soon be in new hands. Tower MSA will be closing monitoring WCMSA reviews through Capitol Bridge to ascertain what, if any, differences can be identified in the allocation of care in the WCMSA compared to the prior contractor. Variances outside of established CMS guidelines will be challenged.

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

What Do Medicare Part D, Medicare Set-Asides and Parenting Have in Common?

Posted on March 2, 2018 by Rita Wilson

For those who have raised children, or are in the process of doing so, one of our biggest challenges is to instill in our children some sort of positive decision-making paradigm in our children.  You can call it religious values, moral absolutes, grounding, or just plain common sense, but as parents, we set boundaries (rules) from the earliest age, and try to be consistent in our enforcement.  Our children may think we’re just mean, but this is a price we’re willing to pay if it helps establish an internal barometer to use when approached by people, thoughts and ideas that challenge them.

In raising my three children, one of the techniques I used was a simple, banded bracelet with the acronym, “WWJD” that is, What Would Jesus Do? This was a popular phrase in the Bible Belt where we lived.  I asked that they look at the bracelet each time they were faced with an obstacle or asked to do something that didn’t quite feel right.  One afternoon, my son was telling a story about something that happened at his elementary school that caused him to look at his bracelet. I was so pleased when he said he actually looked at it!  He then responded, “Mom, I tried to decide what Jesus would do, but had a little bit of a tough time, so I switched it in my head to “WWMD”, and I knew exactly what Mom would do!”  I couldn’t help laughing, but based on his response to the situation, my simple reinforcement worked.  At the same time, this also reminded me that our actions speak much louder than our words….children will “do as we do” long before they will ”do as we say.”

How does this relate to Medicare Part D and Medicare Set Asides?

Each day, one of my first activities is to review my Google Alerts to look for news about NGHPs, Medicare Secondary Payer issues and opioids.  This morning, the article that drew my attention was from entitled CMS Proposes Opioid Prescribing Limits for Medicare Enrollees.  My first thought in reading the article was that this was great news.

“We are proposing important new actions to reduce seniors’ risk of being addicted to or overdoing it on opioids while still having access to important treatment options,” said Demetrios Kouzoukas, CMS deputy administrator and director of the Center for Medicare.

“We believe these actions will reduce the oversupply of opioids in our communities.”

Key components of the proposal include:

  • Hard formulary levels at pharmacies that would restrict the amount of opioids beneficiaries could receive
  • Establishment of a safety level of 90 morphine mg equivalent (MME)
  • Limiting the # of pills and days supply in an initial prescription for acute pain

According to Kouzoukas, “these are triggers … [that] can prompt conversations between physicians, patients, and plans about appropriate opioid use and prescribing.”

I then realized what CMS was doing.  CMS was setting boundaries to help physicians, patients and plans make better decisions about opioid use…. the same type of boundaries I set for my children so they would make better decisions as adults.  What a great idea!  If physicians, patients and plans (both Medicare and workers’ compensation) can dialogue before Rxs are filled, better decisions about opioids are inevitable and the frequency of opioid addiction will diminish.

So what’s the problem?

Unfortunately, there remains a problem in the world of workers’ compensation and the WCMSA review process.  While I applaud CMS’s effort, there remains a strong disconnect between CMS’s proactive stance on opioid limitations with Medicare Part D and its opioid-friendly review process for WCMSAs.  At the same time, I must also admit to a similar disconnect between what happens with prescription opioids during the life of a workers’ compensation claim and what we are asking CMS to do when reviewing the MSA at settlement time.  Are we asking  CMS to “do as I say,” instead of providing the example of   “do as I do?”

Can we ‘connect the dots’?

After reading the article, I realized that as an MSP compliance company that has integrated opioid triggers into its Pre-MSA Triage and review process since Day #1, Tower now has a new weapon in its arsenal to assist clients to identify pharmacy obstacles as early possible, and to address issues of inappropriate drug use.  By advising clients to establish and enforce “CMS-like” boundaries at Rx fill time, we have the potential to reduce opioid use in workers’ compensation just as CMS seeks to accomplish with Medicare Part D.  Through such efforts, we can reinforce dialogue between physicians, claimants and workers’ compensation plans before the Rx is filled, and hopefully facilitate better decisions about the first opioid Rx.

And as for the disconnect between Medicare Part D and the WCMSA review process, we cannot force CMS to change its WCMSA prescription drug review process.  We can, however, leverage CMS’s expertise to support better outcomes with Medicare beneficiaries, MSAs and settlements by mirroring their Medicare Part D policies and processes within the workers’ compensation PBM model.  In doing so, we provide CMS with a positive example of their own recommendations implemented successfully, and can hopefully encourage them to “do as we do.


So how do we affect change in opioid prescribing habits in workers’ compensation?  It’s as simple as the bracelet I gave my children.  From Day #1 of a claim involving an active or soon to be active Medicare beneficiary, we continually ask the question, “What Would Medicare Do?” and we execute.

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