MSP Compliance Blog

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

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

Posted on November 2, 2016 by Rita Wilson

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.


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:

  1. 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.
  2. 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:

  1. A court ruling regarding the compensability of the claim; or,
  2. 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….


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

CMS: Workers’ Compensation Medicare Set Aside Arrangements

FDA Mandates New Warnings for Opioid and Benzodiazepines

Posted on September 20, 2016 by Rita Wilson

Hydrocodone Rescheduled

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.”


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.


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

Posted on May 18, 2016 by Rita Wilson

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

Growing Press Surrounds Tower MSA’s Groundbreaking MSP Automation Suite

Posted on January 25, 2016 by Tower MSA Partners

An article today posted by Yahoo! Finance discusses the new MSP Automation Suite by Tower MSA. The article cited the groundbreaking and sophisticated technology developed by Tower MSA that drives the MSP process.
MSP Automation Suite

Describing the MSP Automation Suite:

“The sophisticated technology drives all the processes Tower has perfected to proactively manage Section 111 Mandatory Insurer Reporting, the recently implemented Conditional Payment Notice process, and to stage workers’ compensation claims for Medicare Set-Asides and closure.”

Our CEO Rita Wilson offered many insights about the new MSP Automation Suite:

“Essentially, it automates our best practices for Medicare Secondary Payer compliance, claims optimization and MSA preparation.”

“Our Pre-MSA Triage identifies barriers to settlement and recommends claim-specific interventions, like physician peer review and clinical oversight, to remove those barriers long before preparing an MSA.”

“Clients don’t need to manually diary activities or call to check on things.”

“The system shows exactly when a phone call was made, and follow-up is due.”

“Automation frees claims professionals to address issues that require a human touch.”

The article went on to say:

“The MSP Automation Suite can track a claim from Medicare beneficiary identification through final settlement. It records every claim activity performed by Tower or its network of practicing physicians and pharmacists and provides clients with 24/7, end-to-end visibility into claims. The system prompts for missing data, conditional payment searches, and medical/pharmaceutical interventions and sends electronic updates to clients at appropriate data points.”

If you would like to read the full article, it is available here on Yahoo! Finance.

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

Posted on January 13, 2016 by Rita Wilson

opioid guidelines

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.


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.

For Media Inquires, Contact:

Helen King Patterson

    Subscribe to our blog & news

    Search our blog:

    Contact Us for a FREE Consultation