MSP Compliance Blog

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

Dangers of Tramadol Recognized

Posted on July 23, 2014 by Tower MSA Partners

Recently, the DEA made the decision to reclassify Tramadol as a schedule IV controlled substance and the decision will officially go into effect on August 18th. Tramadol is an opioid analgesic and aside from its generic form it can also be found in brand names such as Ultram, ConZip and Ryzolt.

This is considerably important news for a number of reasons. First, Tramadol is one of the last commonly prescribed opioids to not be scheduled by the DEA. It has long been used by physicians as a “substitute” for other opioids perceived to be more dangerous. The prevailing thought has been that tramadol has a better safety profile and is not associated with dependence or other negative side effects as much as its headline grabbing brethren such as Oxycontin. In work comp and really in health care in general, it has been this type of thinking that has led to the frequent prescribing of Tramadol as a first line treatment even prior to recommending an NSAID.

The DEA however, has now realized that the data shows something different entirely. And because Tramadol was not scheduled upon FDA approval, it had been closely monitored since it hit the market in 1995 … that is until the steering committee tasked with monitoring dissipated in 2005 due to lack of response to their findings. And what they found was that Tramadol had a high incidence report as related to emergency room visits, a high potential for abuse and astonishingly atypical withdrawal symptoms both when the drug was titrated and stopped abruptly. There were 16,000 emergency room visits related to Tramadol in 2010 yet still 40 million prescriptions made it out of doctors’ offices in 2012.

It is unfortunate that it has taken the DEA this long to do what 10 states have already found necessary (states have the right to schedule differently than the feds), but at the very least this action has brought increased awareness to the dangers of all opioids – not just the typical headline grabbers. And to their credit, throughout their process the DEA was faced with pushback from a number of interest groups citing the potential for a new black-market to emerge, fear of criminal action by prescribing physicians and even the complaint that there is a never ending practice of drug-scheduling (give me a break); but through it all they held firm and got this done.

Chronic Pain Can Be Managed With Alternative Therapies

Posted on July 10, 2014 by Rita Wilson

Traumatic injuries and opioid therapy can alter the pain pathways in the central nervous system, and this process is called neuroremodeling. This can cause unwanted or undesirable reactions to pain and negatively impact the recovery process. There are several approaches to reversing the neuroremodeling, some of these alternative treatments include cognitive behavior therapy and opioid tapering.
A patient cannot overcome chronic pain when their mind is at odds with their body, and so psychological therapy can be an effective way to reverse the body’s perception of pain. Cognitive behavior therapy uses teaching strategies to enable patients to control their perception of pain, and to overcome the feeling of defeat about an injury.   Through CBT, patients learn to cope with existing pain using relaxation, distraction, imagery and self-hypnosis.

Chronic pain affects the whole person… mind, body and spirit.  As such, pain management alternatives must consider more than just the physical.

“In some patients, opioid therapy administered to reduce pain has the opposite effect and the patient experiences an increased feeling of pain. This effect is called opioid-induced hyperalgesia (OIH). OIH is an example of neuroremodeling that occurs to the specialized receptors in the body that respond to opioids. The cause is unknown, but sometimes a normal perception of pain can be restored by discontinuing opioid therapy through a medically supervised program. The assistance of a comprehensive pain management center experienced in opioid tapering may be necessary.”

Many are resistant to standard detoxification programs, noting that most are cost-prohibitive, and many times the patient returns to old habits.  While this may occur in some cases,  greater attention is being given in treatment guidelines, especially when opioids are involved, to recommend alternative pain management strategies like CBT in an effort to heal the whole person.  Leveraging the patient’s individual strengths while building compensatory strategies to offset weaknesses, long term success can be achieved. 
What’s the old saying…..

 “Give a man fish and he will have food today.  Teach a man to fish and he will have food for a lifetime.”

Are we, as an industry,  willing to spend the time, money and effort to teach?

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.


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