MSP Compliance Blog

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

Managing Costs Of The Aging Workforce In Workers’ Comp Claims

Posted on July 10, 2014 by Rita Wilson

Problems arise in the workplace with aging employees, especially when the work involved requires physical stamina. The same can be said for those employees with pre-existing medical conditions, like diabetes or asthma. One way to manage the occurrence of workers’ compensation claims is to provide a number of alternatives for employees, measures that will act as preventative care.

Some companies determine the definition of aging by setting a certain age limit, depending on the type of work it can be as early as 35. While it has been shown that there are no greater instances of workers’ compensation claims in older workers, the cost of claims from aging workers is significant to companies. Implementing wellness programs that provide incentives for healthy behavior is one way to counter the aging or ailing of your workforce. Marsh has released a Risk Management Research Briefing that shows ways in which employers can counter the workers’ compensation costs for an aging workforce.

The cost to employers when older workers are injured can be much higher than when younger employees are injured. Obesity and other comorbidities common to older employees could also extend recovery times. But you can take action to reduce the frequency of injuries and help your employees remain fit and better able to recover following an injury.

In light of  our current challenges with MSAs, and the struggle we see with CMS acceptance in cases where co-morbidities and obesity complicate treatment and settlement, this article brings to light some interesting points.  Accidents in the elderly may be inevitable, but proactive steps taken now to create a healthier workforce at any age may result in significantly less severe accidents.  For Medicare beneficiaries, the financial ramifications could be significant.

Is The Tidal Wave of CMS Development Letters Behind Us?

Posted on May 14, 2014 by Rita Wilson

In case you didn’t hear us shouting from the rooftop, Tower MSA Partners (as well as other companies across the MSA industry) was notified Tuesday, May 13, 2014 that full MSA approval had been given for approximately 100 cases, more than 50 of which were in various stages of development request processing.  While this was certainly a welcomed announcement, I believe strongly that it was not an arbitrary decision by CMS, nor was it achieved by a few large companies.  I see this accomplishment as the result of the combined and focused efforts of many in the MSP compliance industry.  

Where Do I Begin?

As many of our clients have become painfully aware, development requests have been a major issue for Tower, as well as every carrier, employer and MSA provider in our industry, since late 2013.  In early January, I discussed this new trend via a blog article ( ) to explain what we were seeing as a company.  In follow up to the article, I took this information to my industry peers, encouraging their participation to track the trend through my involvement with the Data and Development Committee of NAMSAP (National Alliance of MSA Professionals).   

An Industry Moved to Action

Data capture of development requests began in January with analytics by the DDC for the next 90 days.  At the same time, the NAMSAP Board of Directors asked that I prepare an article to be published in NAMSAP’s national newsletter, and also to help author a letter to be submitted to CMS on behalf of the NAMSAP BOD.  The article’s intent was to communicate the source and impact of development letters among our membership, and to encourage readers to share their experiences in the form of actual data.  The letter to CMS presented aggregated, experiential data to demonstrate the effects of the WCRC’s actions, and to communicate the settlement obstacles being created by this process (not the least of which was the request for HIPAA protected primary care physician medical records). 

Communication Through Data Analytics

Through the efforts of the DDC to summarize the data obtained from multiple companies across our industry, the letter submitted by NAMSAP’s BOD to CMS provided clear evidence of the impact of the actions of the WCRC on settlement initiatives.  We then requested that CMS work with our industry to reestablish a strategy that included only ‘injury related’ medical and pharmacy history, and followed the published standards defined in the March 2013, November 2013 and February 2014 editions of CMS’s own WCMSA Reference Guide as their only criteria to ensure that Medicare’s interests are adequately protected.   

While we cannot confirm that CMS’s recent actions were in response to the initiatives pursued by NAMSAP, or through the efforts of a single company, we certainly believe industry involvement for the benefit of all stakeholders was the right course of action and are thrilled with the outcome.  We are pleased to have been an active participant in this process.

Lessons Learned?

As the MSP compliance partner for employers, TPAs and carriers, our primary responsibility is to prepare and submit Medicare Set Asides that to the best of our knowledge, ability and expertise ensure that Medicare’s interests are adequately protected when settling future medical claims.  From a professional ethics perspective, this means doing what is reasonable on behalf of the claimant.  For Tower, we describe this as, “helping clients balance care, cost and compliance when settling claims that involve Medicare beneficiaries”.       

One of our client’s website taglines reads as follows, “We strive to ensure that injured workers get the right care at the right time—and we focus on getting it done the right way. It’s our commitment.”  I’ve read this quote many times and strongly believe this is the goal of most in our industry….. do what is reasonable.  And in the end, regardless of CMS submission and approval, I believe this will provide adequate evidence of our efforts to protect Medicare.

Looking ahead, we must now prepare our team and our clients for the next wave of CMS submissions.  How do the experiences of the past 6 months impact our internal processes going forward?  Was the development letter barrage truly a ‘ghost hunt’, or is there something to be learned from the WCRC’s actions?   This will be the focus of our attention in the coming weeks.





Can A Medicare Beneficiary Obtain Coverage Under ACA Compliant Major Medical Plan?

Posted on April 21, 2014 by Rita Wilson

This was a question raised recently within the NAMSAP (National Association of MSA Professionals) listserv.   While it seemed simple and straightforward, it generated so much interest from so many within our organization, I thought it worthy of a blog post to communicate both dialogue and  dilemma .

Setting the Stage

n 2011, a medical liability claim was filed when a first time mom lost her child 19 weeks into pregnancy due to a missed diagnosis of sepsis.  Not only did she lose her child, she also lost both legs below the knees, nine of her ten fingertips and now has only 25% kidney function.  In spite of the horrific outcome resulting from the misdiagnosis, the woman has a marvelous attitude about life.  Having received SSDI benefits for almost 24 months, she will become Medicare eligible in the next six months.

As a result of her pending Medicare beneficiary status, plaintiff attorney requested an MSA allocation.   The MSA was finalized with total future medical and pharmacy costs projected at approximately $1,000,000.  Settlement negotiations remain ongoing.  At this point, however, defense counsel believes that an MSA is not necessary noting that claimant could easily obtain an ACA compliant, standalone major medical policy during an open enrollment period.

If an ACA compliant policy is an appropriate alternative to an MSA to address future medical treatment, then what’s to stop all injured claimants that are Medicare beneficiaries, whether involved in a workers’ compensation liability claim, from doing the same, effectively ignoring the MSP statute’s legal obligation to consider and protect Medicare’s future interests?  The question at hand….

If an injured claimant can obtain ACA coverage at any time, before or after Medicare eligibility, why bother with a MSA? 

Can A Medicare Beneficiary Obtain ACA Coverage?

The short answer, per 45 CFR 148.103, is that ACA policies can only be provided to “eligible individuals”, and a person  who is eligible for Medicare is not eligible for coverage under the ACA.

From the ACA FAQ link, we find the following (

Does Medicare Meet ObamaCare’s requirement that all Americans have health insurance?
If you have Medicare Part A (Hospital Insurance) or Medicare Part C (Medicare Advantage, you’re considered covered and won’t need a Marketplace plan. Having Medicare Part B (Medical Insurance) alone doesn’t meet this requirement.

Can I get a Marketplace Plan in Addition to Medicare?
No. It’s against the law for someone who knows that you have Medicare to sell you a Marketplace plan. This is true even if you have only Part A or only Part B.

If you want the technical version, go to for specific guidance.  And in Medicare’s own words, the relationship between ACA and Medicare is explained

MSP Compliance Within An ACA Environment… Back to the Beginning 

While the answer appears to be simple in this case,  the fact that such a recommendation was made by an attorney should raise a flag to all who live daily in the MSP compliance arena.  With so many unknowns surrounding the ACA, “Will a healthier workforce yield fewer claims and a faster return to work?  Will the ACA create cost shifting from workers’ compensation to group health?   Will the scarcity of primary care physicians impede carriers’ ability to deny questionable claims as quickly as possible?”, miscommunication and confusion are inevitable.  If for no other reason than clarity for ourselves and our clients, this is worthy of our attention.

How do we overlay what we’ve learned in recent months about the ACA with our understanding of the mandates imposed by the MSP statute so that we can educate, advocate and set expectations for our clients?  The first step, I believe, is to go back to the the beginning, and to remind ourselves of the intent of the MSP statute… to protect Medicare from making payments it shouldn’t make, regardless of whether payment represents past, present or future exposure.

The MSP statute mandates that:

  • Payments made ‘conditionally’ by Medicare for treatment for a workers’ compensation, liability, no-fault claim that was reasonably be expected to be paid by an entity other than Medicare be recovered;
  • Medicare’s interests be considered and protected when settling a claim when any portion of the settlement dollars is intended to cover future medical treatment for a current or pending (within 30 months) Medicare beneficiary;
  • All Responsible Reporting Entities (payers) report, through MMSEA Section 111 Mandatory Insurer Reporting, the total settlement amount when a TPOC event (Total Payment Obligation to Claimant) occurs.

These are the pillars of MSP compliance, and represent the filters we should use each time we contemplate settlement  in a case that involves a Medicare beneficiary.  Does the action being proposed adequately protect Medicare’s past, present and future interests?

In this situation, we find ourselves at a disadvantage as we know little from the ACA as to its prospective relationship to the non-group health environment.  What we do know, however, and the looming danger, is that the ACA guarantees no exclusions for pre-existing conditions and no lifetime limit for medical care.  Its boundaries, therefore, are non-existent.

How Will the Government Respond?

With limitless dollars for medical treatment under an ACA plan, a reasonable expectation is that the US government will attempt to recover each and every penny when treatment of an ICD9 code can be linked to a workers’ compensation, liability or no-fault claim.  As such, it seems logical that an MSA is the only way to ensure that Medicare’s past, present and future interests are appropriately protected.

To shift the burden to a health exchange supports neither the recovery of past payments nor the means to provide future protection for those government payments made on behalf of the Medicare beneficiary (Medicare Part  A & B).  To complicate the equation even further, if there is a third party Advantage C plan in the picture, those commercial dollars that partially fund the care are also at risk.  As such, the commercial carriers will seek every available dollar on a case such as this where lifetime exposure exists.

Today’s Conclusion

The introduction of ACA within the framework of MSP compliance is certainly an issue that requires further research, and one I’m pleased to see NAMSAP follow.  At this point, unless something comes to light to dispute the information included above, it would appear that ACA plans and Medicare will exist mutually exclusive of each other.  As such, to comply with the intent of the MSP statute, any settlement pursued for a Medicare beneficiary, regardless of total settlement dollars or the availability of ACA plans, should include an MSA.

ACA policies can only be provided to “eligible individuals”. 45 CFR 148.103 provides that someone who is eligible for Medicare is not eligible for coverage under the ACA.


Is Opioid Use Under Control in Workers’ Compensation?

Posted on April 15, 2014 by Rita Wilson

With the recent publication of the ACOEM Guidelines for Opioid Use and new guidelines from the American Chronic Pain Association (ACPA) that include very specific recommendations to monitor opioid use, the question was raised generically as to whether opioid use is under control in workers’ compensation.  Certainly, with greater specificity in Morphine Equivalent Dosage (MED) directives, reducing the maximum threshold for potential concern for dependency to 50MED, our experiences and research have intensified our understanding of where and how the problem begins.  Does this, then, mean that opioid use is under control?

According to the CDC, the US makes up only 4.5% of the world’s population, yet consumes more than 80% of all opioids.  My short answer, then, is “No, opioid use is not under control in any industry in the US.”

 The title of the cover article in this month’s (April 2014) issue of ‘The American Legion Magazine’ is “Pain’s Addiction: Opioids and the Military Veteran.’  Quoting from the first line of the article,  

By the time Justin Minyard discovered the video of himself stoned, drooling and unable to help his daughter unwrap her Christmas presents, he was taking enough OxyContin, oxycodone and Valium every day to deaden the pain of several terminally ill cancer patients.

And later, from a veteran’s widow,

Just before Ricky’s overdose and death, his medication list included oxycodone (short-acting opioid, pain), hydrocodone (short-acting opioid, pain), Valium (anti-anxiety), Ambien (insomnia), Zoloft (anti-depressant), Gabapentin (Neurontin, neuropathic pain) and Tramadol (Ultram, ‘narcotic like’ medication for moderate to severe pain).

The shocking realization for me…  I can’t tell you the number of times I’ve seen this exact drug regimen in a legacy workers’ compensation claim referred to Tower for an MSA. 

Other Recent Opioid Related Announcements:

  • March, 2014, Attorneys General from 29 states sent letters to the FDA to request the withdrawal of FDA approval for ZOHYDRO, a pure version of the opioid, hydrocodone.
  • 6 days ago, Business Insurance released its latest white paper, “Opioid Abuse, How to Tackle a Growing Problem.”   
  • March, 2014, the Reed Group announced that it dedicated an entire chapter to its Disability Guidelines to provide opioid guidance, documented and independently researched by ACOEM (the American College of Occupational and Environmental Medicine.)
  • February, 2014, the ACPA (American Chronic Pain Association) released its 2014 Resource Guide to Chronic Pain Management.  The guide specifically noted that 30% of hospital admissions among the elderly can be linked to an adverse drug event or toxic effect of opioids and sedatives.

While it remains the exception, I believe this 16-20% segment of the workers’ compensation population consumes more than its reciprocal 85% of the system’s money, time and expertise.  I believe opioid use, combined with its side effects, interactions and impact on quality of life, to be the key driver of cost and appropriate care with the MSA and associated settlement. I support and follow PROP (Physicians for Responsible Opioid Prescribing  I will also continue use our blog, to communicate issues, strategies, treatment guidelines, etc. 

The more we understand about chronic pain, as compared to acute pain, and the effects of long term opioid use, the more aggressive we will be in our efforts to identify and address its potential for misuse early in the claim. 


Managing Chronic Pain in Older Adults

Posted on April 8, 2014 by Rita Wilson

According to the ACPA (American Chronic Pain Association) Resource Guide to Chronic Pain Management, “persistent or chronic pain is prevalent in older adults.”

“Nearly one third of all prescribed medications are for patients over the age of 65 years.   More than thirty percent of hospital admissions among the elderly may be linked to an adverse drug related event or toxic effect from opioids and sedatives.  Unfortunately, many adverse drug effects in older adults are overlooked as age-related changes (general weakness, dizziness, and upset stomach) when in fact the patient is experiencing a medication-related problem.  In addition, some older individuals may be more sensitive to medications, more likely to experience side effects, and more likely to be using multiple drugs with the associated risk of interactions between the drugs.”

Workers’ Comp Implications

For those who manage workers’ compensation claims, these statistics should highlight the importance of a consistently executed decision making paradigm when authorizing prescription medications for older patients. 

  • Before approving a new pain medication for an elderly injured worker, confirm that the initial dose is being prescribed at the lowest possible strength and frequency. 

  • When increases are requested, approve only those changes to strength and frequency that are adjusted slowly to optimize pain relief. 

  • When possible, confirm that the patient is monitoring and managing his / her own side effects.

When dealing with less dangerous treatment options for injuries in the elderly population, potential treatment options include:

  • Use of multiple drugs together – Careful  use of multiple drugs is potentially advantageous as the combination of smaller doses of more than one medication may minimize the dose-limiting adverse effects of using a particular single drug.

  • Alternatives to pharmacologic treatment – As an alternative to prescription drugs, physical rehabilitation and other interventional therapies, including targeted injections and acupuncture, can be helpful to minimize side-effects and maximize physical function with pain relief

Triggers For Potential Concern

Pain management in the elderly is a unique challenge.  Beyond the normal concerns of addiction and overuse, those who authorize treatment in a workers’ compensation claim for an older worker must also compare the potential dangers associated with the side effects of the medication against its promised value.  Triggers that may warrant intervention for an older injured worker include:

  • Opioid treatment that continues for more than 90 days post injury / surgery

  • An increase in the strength or frequency of an opioid prescribed more than 90 days post injury / surgery

  • A request to change from an orthopedic or other specialist to a pain management specialist more than 90 days post injury/surgery

  • A decrease in opioid drug use followed by a request for a new treating physician

  • The appearance of a long acting opioid medication following continued use and/or an increase in dosage of a short acting opioid more than 60 months post injury

Identify, Intervene and Remain Involved

By peeling back the onion one layer at a time, questions can be raised, physicians can be challenged and evidence based treatment guidelines can be used to confront the status quo.   The first step is to ask your workers’ comp PBM to identify claims that meet your triggers.   Once identified, intervene with the treating physician either directly, or through a formal peer review.  Once intervention is complete, remain involved until changes are complete.  

When preparing for settlement, it’s critical to work with an MSA partner who will serve as gatekeeper to identify the same triggers and  intercept problem claims before the MSA is prepared.  Working hand in hand, positive outcomes can be achieved for the elderly.   The process is simple.  Consistent execution is the key.

For more information on medical and pharmacological issues related to pain management in the elderly population, I encourage you to review the publications made available by the American Geriatrics Society  (  For questions related to pain management issues related to Medicare Set Asides, email us at


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