MSP Compliance Blog

A $0 MSA remains an option in some workers’ compensation case settlements, although strict criteria must be met if CMS approval is necessary.  It is essential then for claims professionals to understand this criteria as steps taken early in claims handling can sometimes be the difference between a $0 and a fully funded MSA at the time of settlement.

Over his two decades in MSP compliance, Tower’s Chief Compliance Officer, Dan Anders, has successfully obtained CMS approval on hundreds of $0 MSAs.  Please join him for a Tower Premier Webinar on Feb. 15 at 2 PM ET.

In addition to $0 MSAs, Dan will also discuss using state statutes and regulations to limit MSA amounts.

The presentation covers the following:

• Criteria for a CMS-approved $0 MSA
• Alternative criteria for a Non-Submit $0 MSA
• A step-by-step guide as to how to work with Tower to obtain a $0 MSA.
• Use of state statutes and regulations to limit the MSA amount.

A Q&A session will follow the presentation, and you can provide questions you’d like us to cover when you register. Please click the link below and register today!

Please note that there is no CEU credit offered for this webinar.

Register Here

People in the MSP compliance business rattle off acronyms and abbreviations, such as AWP, MMSEA, and TPOC like it’s second nature. People immersed in Section 111 reporting and Medicare Set-Asides understand the abbreviations, but most people listening to us do not. So, here’s a quick cheat-sheet (or handy guide) to frequently used acronyms and their meanings:

Common MSP Acronyms and Abbreviations

AWP – Average wholesale price:  The AWP is a Red Book pricing reference for prescription drugs. The lowest AWP is used to calculate Medicare Part D drugs in a Workers’ Compensation Medicare Set-Aside (WCMSA).

BCRC – Benefits Coordination & Recovery Center: This contractor to the Centers for Medicare and Medicaid Services consolidates the activities that support the collection, management, and reporting of other primary insurance coverage for Medicare beneficiaries.  In short, it manages the MMSEA Section 111 reporting program and pursues conditional payment recovery when the claimant Medicare beneficiary is the debtor.

CMS – Centers for Medicare and Medicaid Services:  The federal government agency oversees the Medicare program.  CMS’s Division of MSP Program Operations directly manages CMS’s Medicare Secondary Payer (MSP) enforcement programs.

COB – Coordination of Benefits:  The coordination of benefits (COB) program aims to identify the health benefits available to a Medicare beneficiary and to coordinate the payment process to prevent mistaken payment of Medicare benefits.

CRC – Commercial Repayment Center: This CMS contractor pursues conditional payment recovery when the self-insured entity or the insurer is the identified debtor.

CWF – Common Working File: CMS uses this tool to maintain national Medicare records for individual beneficiaries enrolled in the Medicare program.  For example, a funded CMS-approved workers’ compensation Medicare Set-Aside (WCMSA) will trigger a marker in the CWF, so Medicare will not pay for care covered by the WCMSA.

LMSA – Liability Medicare Set-Aside: General term for an MSA in a liability case settlement.

MBI – Medicare Beneficiary Identifier:  The Medicare Beneficiary Identifier (MBI) is the identification number replaced SSN-based health insurance claim numbers (HICNs) on all Medicare transactions, such as Medicare cards, billing, claim submissions and appeals.

MIR – Mandatory Insurer Reporting:  Another term for MMSEA Section 111 reporting.

MMSEA – Medicare, Medicaid, SCHIP Extension Act of 2007: Section 111 of this act added mandatory reporting requirements regarding Medicare beneficiaries who have coverage under group health plan (GHP) arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards, or other payment from liability insurance (including self-insurance), no-fault insurance, or workers’ compensation, collectively referred to as Non-Group Health Plan (NGHP) or NGHP insurance.

MSA – Medicare Set-Aside: An account used to pay for injury-related and Medicare-covered medical services and prescription medications. It is a portion of a settlement that is reserved or “set-aside” for this purpose.

MSP – Medicare Secondary Payer: This is the term generally used when the Medicare program does not have primary payment responsibility, that is when another entity, such as workers’ compensation or liability insurance or a group health plan, is responsible for paying before Medicare.

MSPRP – Medicare Secondary Payer Recovery Portal: A web-based tool designed to assist in the resolution of liability insurance, no-fault insurance, and workers’ compensation Medicare recovery cases.

NGHP – Non-Group Health Plan: Typically used in reference to Section 111 reporting, NGHP includes liability insurance (including self-insurance), no-fault insurance, and workers’ compensation.

ORM – Ongoing Responsibility for Medicals:  This refers to the Responsible Reporting Entity (RRE) paying for the injured party/Medicare beneficiary’s ongoing medical treatment associated with the claim.

RO – Regional Office:  A CMS RO is assigned to each WCMSA case (based on the claimant’s state of residence); that RO makes the final determination of the appropriate funding level for the WCMSA.

RRE: Responsible Reporting Entity: The applicable plan, namely the NGHP, responsible for Section 111 reporting to CMS.

SSDI – Social Security Disability Insurance: Pays monthly benefits to workers who can no longer work due to a significant illness or impairment that is expected to last at least a year or result in death within a year.

SSN – Social Security Number: A numerical identifier assigned to U.S. citizens and other residents to track income and determine benefits.

TPOC – Total Payment Obligation to the Claimant: For Section 111 reporting purposes, CMS uses the term TPOC to refer to the dollar amount of the total payment obligation to, or on behalf of, the injured party in connection with the settlement, judgment, award, or other payment in addition to/apart from ORM.

WCMSA – Workers’ Compensation Medicare Set-Aside: This is a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness, or disease.

WCMSAP – Workers’ Compensation Medicare Set-Aside Portal: The WCMSAP may be used to submit and view WCMSA proposals, to communicate about the review approval process, and to submit re-review requests. Users can also view the status and balance of an established WCMSA and submit annual attestations and detailed transaction records.

WCRC – Workers Compensation Review Contractor: This CMS contractor reviews all submitted WCMSAs and advises the CMS Regional Office whether the proposed WCMSA is sufficient, or a higher or lower amount is recommended.

Starting July 2023, Responsible Reporting Entities (RREs) can access updates/changes that another source has made to their claims for Ongoing Responsibility for Medicals (ORM).  The Centers for Medicare and Medicaid Services (CMS) announced this in an update to its MMSEA Section 111 NGHP User Guide, Version 7.0.

It may surprise insurers and self-insurers that the ORM data they report through Section 111 reporting can be modified by the Benefits Coordination and Recovery Center (BCRC), which coordinates benefits on behalf of CMS. For example, suppose a claimant contacts the BCRC and advises that they are being denied medical care due to an open ORM (ORM indicates the RRE accepts the claim). In that case, the BCRC may update the ORM record to indicate that medical has been terminated (especially if the claimant indicates the case has been settled).

The RRE needs to be notified of this action to correct its reporting or to advise the BCRC that this was an erroneous change to the record.

Presently, and in our experience, the BCRC typically issues a letter to the RRE advising of the change it made to the ORM status.  Starting this summer, RREs can also access these changes through Section 111 reporting. The revised user guide states:

Effective July 2023, RREs will be able to opt in via the Section 111 secure website to receive a monthly NGHP Unsolicited Response File. This will provide critical information about updates to ORM records originally submitted in the last 12 months and allow RREs to either update their internal data or contact the Benefits Coordination & Recovery Center (BCRC) for a correction.

This report will provide the source of the record modification and the reason for it. This should eliminate confusion when the BCRC changes ORM reporting data.

Other Updates to Section 111 User Guide

CMS included these other updates in Version 7.0 of the user guide:

• Sections 6.4.2, 6.4.3 and 6.4.4. of Chapter III: Policy Guidance indicated CMS would maintain the $750 reporting threshold for physical trauma-based liability insurance settlements and the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibility for medicals.
• In Chapter IV: Technical Information besides the aforementioned ability to, as of July 2023, obtain an NGHP Unsolicited Response File, CMS put in place the following changes:
• Information on recovery agents was clarified to emphasize that such agents need written authorizations to pursue any post-demand actions (Section 6.3.1).
• Recovery agents may now view the Open Debt Report on the Medicare Secondary Payer Recovery Portal (MSPRP), if the agent has an active MSPRP account with a TIN matching one submitted on the RRE’s TIN Reference File (Section 6.3.1.2).
• ORM Termination Date field number 79 was corrected for the Event Table (Section 6.9.1).

As Tower is a recovery agent for many of our clients, the ability to download a copy of the Open Debt Report will be helpful in monitoring CMS’s ongoing recovery actions.

• Finally, CMS updated Chapter V: Appendices as follows:
• The CP13 soft edit policy limit amount has decreased from $1000 to $500 (Appendix F).
• For the TIN Reference File, the Go Paperless Indicator is no longer required when submitting the Recovery Agent TIN (Field 25) (Appendix G).

If you have any questions on these updates, don’t hesitate to contact Tower’s Chief Compliance Officer, Dan Anders, at Daniel.anders@towermsa.com or 888.331.4941.

As we launch into 2023, here’s a look back at the top five Medicare Secondary Payer (MSP) compliance stories of 2022 and what to watch for this year.

Addition of Non-Submit MSA Policy to CMS WCMSA Reference Guide

2022 certainly got off with a bang when CMS added Section 4.3 to the CMS Workers’ Compensation MSA Reference Guide.  Entitled “The Use of Non-CMS-Approved Products to Address Future Medical Care,” the policy, which was later amended (See CMS Clarifies Policy on Non-Submit MSAs in Updated Reference Guide), provides as follows:

• A non-submit MSA represents a potential cost shift to Medicare.
• At its sole discretion, CMS may deny payment for injury-related medical up to the total settlement amount less procurement costs and paid conditional payments.
• If the non-submit MSA exhausts, it must be demonstrated that the MSA was sufficiently allocated at the time of settlement and the funds were spent properly.
• Shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after January 11, 2022
• It does not apply to under-threshold MSAs (settlements that do not meet the CMS WCMSA review criteria).

Questions remain.  To what extent will CMS issue denials where a non-submit MSA is used? How will this process work when a non-submit MSA exhausts? What steps will CMS take to determine the sufficiency of the MSA when the claim is settled? And what evidence will CMS require to prove the MSA funds were spent correctly?

Ametros Study Confirms Post-Settlement Medicare Denials Do Occur

The question of whether CMS denies payment for injury-related care was answered, at least for CMS-approved MSAs, in an extensive study Ametros published in January 2022.  This first-of-its-kind study examined a random sample of five percent of the Medicare beneficiary population over a three-year period.  They estimated that the following number of claims were denied because WCMSA funds were responsible for their payment.

• 35,980 in 2018
• 36,060 in 2019
• 30,720 in 2020

The report’s key conclusion is “Medicare is systematically denying MSA recipients’ claims, and with steady frequency.”  You can download the free report “A Study of CMS Policy on Treatment Denials for Injured Workers with a Medicare Set Aside from ametros.com/medicaredenials. 

CMS Releases Key Metrics on WCMSA Review Program

It was not only Ametros that published data related to the MSP program in 2022.  For the first time, CMS released data on its WCMSA review program.

CMS shared statistics for the three-year period of 2020 through 2022.  The data compared proposed MSA amounts with the CMS-recommended amounts (what we typically call the “approved” MSA amounts).

Key takeaways from a review of the three years of data:

• MSA reviews are down, a 17% decline over three years.
• Review methodologies remain consistent.
• The average recommended MSA remains consistently between $80K-$85K.
• A billion dollars in recommended MSAs every year.

Please see For the First Time, CMS Release Key Metrics on WCMSA Review Program for more takeaways and a link to the data.

CMS Withdraws Proposed Rule on Future Medicals in Liability

In a surprise move, 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 are required before a proposed rule is published). It was anticipated that CMS would release the proposed rule in 2022 for comment, but we did not even get to that step in the regulatory process.

The future of formal CMS guidance for liability settlements remains unknown.  While CMS can resubmit a proposed rule for release, we do not know if it will do so or the timeline if it intends to do so.

Notably, in its recently released solicitation for its next five-year Workers’ Compensation Review Contractor (WCRC) contract, CMS included an option for liability MSAs reviews starting in April 2024.  However, while CMS anticipates 19,200 WC MSA submissions per year, the solicitation indicates an expectation of 1,000 per year in LMSAs (with an option to increase to an additional 3,000 per year).  In short, even were CMS to put some LMSA review process in place it seems they contemplate a high dollar or some other type of threshold to reviews given the lower number expected.

In response to CMS’s lack of guidance, Tower released an updated version of its guidance document, Navigating Through the Fog: Medicare Future Medicals & Liability Settlements.

First Anniversary of PAID Act Implementation

On 12/11/2021, payers, gained access to the past three years of Medicare beneficiary enrollment status in Medicare Part C (known as Medicare Advantage) plans and Part D (prescription drug) plans through the Section 111 reporting data. Previously, workers’ compensation payers were required to reimburse these plans for conditional payments but did not know which plans the Medicare beneficiary used.

The PAID Act did not introduce new requirements for resolving debts with Part C and D plans. However, it does allow payers, in some cases, to more easily identify and contact these plans.  Observations one year out:

• In terms of the technical aspects of the transmission of PAID Act data, there have been minimal problems.
• Not all RREs have chosen to accept the PAID Act data into their claims systems (Tower created a dashboard allowing our reporting clients to access PAID Act data without having to ingest it into their claims system).
• While the enrollment information for Part C and D plans is accurate, the same can’t be said for the contact information. (Note, CMS issued a memo in April 2022 to Part C and D plans asking them to provide contact information which can receive inquiries from Non-Group Health Plans in compliance with the PAID Act.)
• There has been an increase in Tower clients’ pre-settlement requests to contact Part C and D plans to inquire about reimbursement claims.

What to Watch for in 2023

Section 111 Penalties:  2/18/2023 is the due date for CMS to issue final regulations on criteria for imposing Section 111 penalties for improper mandatory reporting.  We expect issuance before this date with final regulations becoming effective this year.

MSA Review Contractor:  Capitol Bridge, the Workers’ Compensation Review Contractor (WCRC), is in the last year of its five-year contract to review MSAs for CMS.  On 1/4/2023 CMS published the solicitation for a new five-year contract set to begin on 4/1/2023.

The new contract contemplates 19,200 WC MSA submissions with no increase over the contract period.  What to watch for here is whether CMS keeps Capitol Bridge or brings in a new contractor.

Release of More MSP Metrics:  As noted above, we were pleased to see CMS release critical metrics around the MSA review program.  We hope this becomes an annual report and expands with more data around MSA administration post-settlement and conditional payment recovery.

Best wishes from your friends at Tower for a healthy, happy and prosperous new year!

We’ve had an exciting year of growth at Tower MSA Partners in 2022 and would like to extend our appreciation to you, our valued partners, who have supported us.  Whether this is your first year as a Tower client, or one who has been with us for many years, Tower’s success results from your loyalty.

Our team works diligently each and every day to earn your trust by providing a service level unmatched in the MSP industry.  And we can do that only through the expertise, knowledge, professionalism and commitment of our amazing staff, also unmatched in our industry.  Together with our team, we hope we have met and exceeded your service expectations throughout the past year.  

We extend our warmest wishes to you and yours. A Merry Christmas and Happy Holidays from your friends at Tower MSA Partners.