MSP Compliance Blog

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

Specialty Pharmacy Invades Workers’ Compensation

Posted on February 22, 2014 by Rita Wilson

According to a recent issue of Workcompwire, “specialty medications”, drugs that may require special handling, distribution, administration and patient management, are beginning to have a significant impact on workers compensation.  With specialty conditions such as hepatitis C, rheumatoid arthritis, and multiple sclerosis occurring through direct or indirect contact by healthcare or emergency workers, specialty medications, at costs that can exceed $1,000 per day, may become standard protocol.

Currently there are more than 5,000 new medications in the drug pipeline globally, and 70 percent of those are potential first-in-class medicines – those that use a different mechanism of action from any other already approved medicine. Many of these first-in-class medicines will be considered specialty medications once they complete phase III approval by the FDA. For several years, the pipeline for specialty medications has been far more robust than that for non-specialty medications.

Read more at Workcompwire

CMS / WCRC Development Letters…. Essential Information or Delay Tactic?

Posted on January 17, 2014 by Rita Wilson

In the most recent version of the WCMSA Reference Guide, released on November 6, 2013 (COBR-M11-2013-v2.0), CMS announced a series of changes that submitters should expect to see in the WCMSA review process. Of the changes announced, none appeared to have significant impact on submitter workflow as most were clarifications rather than actual changes in process.

At first glance, I found the updated guide info to be both relevant and helpful. Having a detailed explanation of the rationale and resources used to evaluate the WCMSA should be invaluable in creating an accurate cost projection. And having a clear understanding of when and why development letters might be requested should lead to a more comprehensive submission. It only follows that setting clear expectations up front should lead to better outcomes in both CMS acceptance and WCMSA turnaround time….. Right?

Unintended Consequences…. or Not?
Unfortunately, the outcome of the changes announced on November 6, 2013 has been nothing short of disastrous for WCMSA submitters, and for the carriers, employers and TPA’s they represent. Over the past 75 days, statistics across multiple companies show that 98% of the WCMSA’s submitted to CMS for review have not received final acceptance, all as a result of development requests that fall into one of the following 3 categories:

1. Requests for treatment records for co-morbid conditions unrelated to the workers’ compensation injury from primary care and other physicians (information that can only be obtained via written HIPAA patient consent);
2. Requests for ‘current’ treatment records, whether paid by the carrier or not, when there is clear evidence that the claimant hasn’t treated in months or even years (i.e. the information doesn’t exist);
3. Requests for ‘current’ medical records, pharmacy history, and an updated carrier payout that becomes a circuitous cycle in cases where the patient continues to treat;
In every situation, the submitter is told that the case will be closed within the allotted time period (usually 10 days) if the information is not received.

Early Responses and Explanations
When development requests initially surfaced in early November, 2013, our response was to contact CMS immediately and explain the issue. In every situation, however, our explanations were discarded. Whether we were asked to pierce the HIPAA veil to obtain unrelated information, or to provide medical records that didn’t exist, ‘No’ was not an acceptable response. As a result, less than 2% of all WCMSA’s submitted to CMS since November 1, 2013 have completed the WCRC review process and achieved CMS acceptance.

As we’ve watched cases being closed and re-opened multiple times, we’ve seen the 45-60 day turnaround times from last summer disappear completely. For the WCRC, however, a closure due to missing information places the burden back on the submitter and the case is technically complete. The WCRC’s statistics look great, yet they’ve accomplished nothing.

How are Payers Responding to the ‘Stalemate’?
So what does this mean to our clients? The business result of this dramatic increase in development requests is that many claims aren’t being settled. If settlement is pursued, either new language is generated to make final closure contingent on CMS acceptance, or the settlement is finalized for indemnity only, leaving medical open. What’s even more interesting, however, is the trend we’ve seen recently where certain payers are making the decision to move forward with settlement without CMS acceptance.

CMS Submission – What is Required vs. Recommended?
While it is our legal responsibility to protect Medicare’s interest, CMS has made it clear that WCMSA submission is recommended, not required. It remains to be seen how this will play out in the coming months, but the business question that is being pondered today is whether payers can fulfill their legal obligation under the MSP statute and move forward with settlement without CMS acceptance. By doing what is reasonable and putting forth our best efforts to allocate for future medical expenses, can we lay a foundation that will mitigate future exposure once the WCMSA amount is exhausted?

The information and experiences relayed here are not those of a single company or submitter. They are being felt across the industry and are being reviewed within NAMSAP (National Association of MSA Professionals), both at committee and board of director levels. Hopefully, this will lead to both discussion and direction from CMS.

Stay tuned…..

The WSJ Picks Up NAMSAP Press Release

Posted on April 22, 2013 by Tower MSA Partners

Recently, one of the many but ongoing successes for Tower MSA has occurred. The Wall Street Journal and others covered CEO Rita Ayers’ discussion on pharmacy trends during NAMSAP’s Annual Meeting and Educational Conference on April 25. The Wall Street Journal was just one of many that put out a press release on the discussion. For More information check out the link below.

Tower MSA Partners CEO Rita Ayers Discusses Pharmacy Trends in MSAs at NAMSAP

Effective June 1, 2013 WCMSA Proposals Will Include Benzodiazepines and Barbituates

Posted on April 17, 2013 by Rita Wilson

April 8, 2013

On October 2, 2012, the Centers for Medicare & Medicaid Services (CMS) issued a memorandum to Part D Sponsors concerning the transition to Part D Coverage of Benzodiazepines and Barbiturates beginning in 2013.

Effective June 1, 2013, all  Workers’ Compensation Medicare Set-Aside (WCMSA) proposals submitted to CMS for a review of the adequacy of the proposal amount are to include the pricing of benzodiazepines and barbiturates, where appropriate.

Please note that WCMSA cases submitted to CMS  before June 1, 2013, closed due to missing, incomplete and/or inadequate supporting documentation (or any  other reason), and subsequently re-opened after June 1, 2013, will also be subject to a review that includes the pricing of benzodiazepines and barbiturates.

To read the memo from CMS to all plans that explains the transition guidance with regards to benzodiazepines and certain barbiturates starting in 2013.


CMS Releases Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide

Posted on April 17, 2013 by Rita Wilson

On March, 29, CMS announced the release of a new Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The new guide has been posted and is available in the Downloads section of the CMS Workers’ Compensation Agency Services site at

The WCMSA Reference Guide was created to consolidate information currently found within the Workers’ Compensation Agency Services webpages and CMS Regional Office Program Memorandums, while providing WCMSA information to attorneys, Medicare beneficiaries, claimants, insurance carriers, representative payees, and WCMSA vendors. After reviewing the new guide, I would agree that it is exactly as advertised. There is little new to report for those of us who have researched the CMS website at length and studied each CMS memo released over the past 12 years. For those new to the process, however, the reference guide is an excellent summarization of all requirements, recommendations memos, etc. that have guided us over the years to appropriately protect Medicare’s interests.

While much of the reference guide is technical in nature, providing specific directives for submission, appeals, use of the portal, review expectations, etc., I found three very specific points made to address an area that has historically created confusion. ” If I settle below the CMS threshold amount, does this mitigate the need to prepare an MSA? ”  The short answer is, “No”.  The reasons, specifically explained in the reference guide, are included below:

  • Protecting Medicare’s Interests is ‘The Law
    Any claimant who receives a WC settlement, judgment, or award that includes an amount for future medical expenses must take Medicare’s interest with respect to future medicals into account. If Medicare’s interests are not considered, CMS has a priority right of recovery against any entity that received a portion of a third party payment either directly or indirectly. Medicare may also refuse to pay for future medical expenses related to the WC injury until the entire settlement is exhausted.
  • CMS Submission is Recommended, not Required
    There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, however,  the Agency requests that you comply with CMS’ established policies and procedures.”
  • CMS Submission Thresholds Are For Workload Management Only
    The thresholds for WCMSA submission to CMS for approval are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure that Medicare pays secondary to WC in such cases.Also note that both the beneficiary and non-beneficiary workload review thresholds are subject to adjustment. CMS reserves the right to change or remove these thresholds based on Medicare’s interests. Claimants, employers, carriers, and their representatives should regularly monitor the CMS website at for changes to these thresholds and for other changes in policies and procedures.

I hope the three points above adequately clarify when an MSA is needed as compared to when CMS submission is appropriate.  If questions remain, however, or should you other questions about the guide and its legal implications in settlement, please contact Kristine Wilson, Esq. @ 888-331-4941.

CMS encourages us to continue to visit its website for future updates to the reference guide, including additional details regarding the Workers’ Compensation Review Contractor’s review process


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