MSP Compliance Blog

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

H.R. 5284 – The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act of 2012

Posted on May 17, 2012 by Tower MSA Partners

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act of 2012, H.R. 5284, was filed in the U.S. House of Representatives by Rep. Dave Reichert (R-WA) on April 27, 2012. The Government Printing Office released the text of the bill o May 7, 2012.

What H.R. 5284 Promises
Rep. Reichert purports that this bill “improves the Medicare Set-Aside process for workers compensation claims” and “provides clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare”.

Provides An Exemption From MSP Statute
H.R. 5284 amends the Medicare Secondary Payer (MSP) statute to provide an exemption from the Medicare Secondary Payer (MSP) statute for workers’ compensation settlements where any of the following occur:

• Total settlement is less than or equal to $25,000;
• Claimant is not eligible for Medicare at settlement date and is unlikely to become eligible for within 30 months;
• Future medical coverage is not included in the settlement;
• Settlement agreement does not limit or extinguish the right of the claimant to payment of future medical bills.

Defines “Qualified Medicare Set-Aside”
A (QMSA), as defined in H.R. 5284, is “a Medicare set-aside that reasonably takes into account the full payment obligation for present and future medical payments”. HR 5284 amends the MSP Statute such that a workers’ compensation settlement that includes a “qualified Medicare Set-Aside” (QMSA) will satisfy any obligation, with respect to present or future payment reimbursement under Section 1395y(b)(2) of the MSP statute.

To be considered as a QMSA, the MSA must give due consideration to:

• The illness or injury, age and life expectancy,
• the reasonableness of and necessity for future medical expenses,
• the duration of and limitations on benefits payable under the workers’ compensation law or plan and the relevant State workers’ compensation regulations and case law.

The QMSA must also:

• Include payment for items, services that are covered by the workers’ comp law or plan involved;
• Be based on the applicable workers’ compensation State fee schedule;
• Can (not must) be calculated using a proportional adjustment for compromised settlements that reduces the QMSA by the same proportion that the total settlement was reduced.

Under H.R. 5284, the current CMS review process remains intact. However, the follow requirements must be met during the review process to be considered a QMSA:

• The Secretary has 60 days to review the QMSA.
• Failure to meet that 60-day deadline will deem the QMSA to be approved.
• If denied, the Secretary must include specific reasons.
In addition, HR 5284 establishes an appeals process, with specific time deadlines, that entitles the dissatisfied party the right to all of the following:
• a reconsideration by the Secretary,
• a hearing before an administrative law judge,
• a judicial review.

Establishes a “Safe Harbor” Amount
Medicare set-asides of $250,000 or less are deemed QMSAs upon written consent of all parties to the settlement agreement, AND if a “safe harbor amount” is paid directly to Medicare.
The safe harbor amount is defined as “15% of the total settlement, excluding repayment of conditional payments and previously settled portions of the claim”. The bill gives the Secretary the authority to modify the safe harbor percentage if it is determined that the 15% rate causes significant negative impact.

Sets Time Limit for Conditional Payment Request
If the Secretary fails to provide conditional payment information within 90 days, then neither the claimant nor the payer is liable for any reimbursement to Medicare with respect to the conditional payment information being requested.
Sets QMSA Payment Not > Workers’ Compensation Fee Schedule
No one shall be liable for any payment amount established under a Medicare set-aside for an item or service provided to the claimant that is greater than the related workers’ compensation fee schedule amount. In addition, a provider may not bill a Medicare set-aside more than the payment rate used in the Medicare set-aside or the Secretary may apply sanctions.

 Treatment of state workers’ compensation law
If a workers’ compensation settlement agreement is accepted in accordance with the workers’ compensation law of a jurisdiction, then that acceptance shall be deemed conclusive. That includes determination of reasonableness of the settlement value, any allocation of funds, the projection of future indemnity or medical benefits that may be payable under State workers’ compensation law.

To view the text of H.R. 5248, click here.

Town Hall Teleconference Events – February through June, 2012

Posted on February 17, 2012 by Tower MSA Partners

Mandatory Reporting for Liability Insurance (including Self-Insurance), No-Fault Insurance and Worker’s Compensation

Implementation of Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007
(See 42 U.S.C. 1395y(b)(8))

The CMS will be hosting combined NGHP Policy and Technical Support related teleconference events. For these calls the format is opening remarks and a presentation by CMS, followed by a question and answer session with the audience. Following is the call schedule for the first half of 2012.

NGHP Policy and Technical Support Questions and Answers: These calls will address both policy and technical questions you have regarding Section 111 reporting. Policy discussions will focus on CMS policy supporting the Section 111 NGHP reporting requirements, and how policy is being and has been translated into procedures. Technical support questions will focus on EDI connectivity and data transmission, use of the COB Secure Website, disposition and error codes, and other aspects of the data exchange process. Both CMS staff and representatives of the CMS COBC EDI Department will be available throughout each call.


  •  February 23 (Thursday), 2012
  •  March 22 (Thursday), 2012
  • April 24 (Tuesday), 2012
  • May 24, (Thursday), 2012
  • June 19 (Tuesday), 2012

Call-in time for all calls: 1:00 PM – 3:00 PM Eastern time. Participation is by telephone only.

Call-in line for all calls: (800) 603-1774

Pass Code: Section 111

Questions for the call: Please submit questions to

Please begin dialing in approximately 20 minutes before the call start time, due to the large number of participants.

Tower MSA Partners Seeks Experienced Salespeople

Posted on January 4, 2012 by Tower MSA Partners

Tower MSA Partners is aggressively seeking experienced salespeople in both workers’ compensation and liability markets. Interested parties should forward their resumes to  To speak with someone directly, please call 888-331-4941 and reference this post.

Centers for Medicaid & Medicare Services (CMS) Town Hall Teleconference Call Summary

Posted on November 29, 2011 by Tower MSA Partners

CMS Town Hall Teleconference Call Summary
November 22, 2011

The most recent Town Hall Teleconference was hosted by the Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) on Wednesday, November 16, 2011. Areas of technical concern discussed during the teleconference related to Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) mandatory reporting.

Below is a synopsis of the items discussed:

  •  CMS and Coordination of Benefits Contractor (COBC) responded to multiple callers who described scenarios in which Medicare beneficiaries were being denied payment and/or services for medical conditions unrelated to the workers’ compensation injury. In some situations the beneficiary was being directed to contact his/her workers’ compensation, no fault or liability claim adjuster to obtain authorization for procedures NOT related to the beneficiary’s covered injury.The CMS COBC representatives requested that specific examples of improper provider denials be directed to the individuals hosting the call and they would deal with the issues.As an adjunct, CMS restated the instructions in the 3.2 Version of the User Guidelines which direct RRE’s to report as many ICD9 codes as are applicable to the injury, but reinforced that ONLY those codes that describe the injury are to be reported. If ICD9 codes related to other medical conditions are reported, the COBC may assume that services related to these codes are to be covered by the RRE.
  • CMS discussed the ‘51 disposition code’ errors that are being generated when their system is unable to match on 3 of the 4 personal identification data elements being submitted by the RRE noting that it is extremely important that RRE’s go back and confirm that their info is correct.
    If the RRE has a claim to report, but is unable due to the ’51 disposition code’ error, the RRE may still be considered as non-compliant. The clear message was to address the error.
  • CMS and the COBC reminded the RRE’s that claim records are NOT to be submitted until claim responsibility is established. While the claim is under investigation, no submission should occur.The responsibility to report a workers’ compensation, liability or no fault claim only arises where there is a Medicare beneficiary and either the RRE has assumed responsibility for payment of medical benefits or a TPOC event occurs. Absent those two events no information should be reported on the claim input file.
    The one caveat to the above directive occurs in conjunction with the requirement in certain states (TX and MI were examples) that the entity must pay while investigating claims or during claim appeal. In these situations or ORM, the claim needs to be reported.
  • CMS explained that in situations where ongoing responsibility for medical benefits will continue for a term of months or years following a TPOC event, Medicare expects a subsequent notice of ORM termination to be provided at the time of the ORM termination. CMS will not allow RREs to report ORM terminations that are, for instance, one to two years into the future. RREs must report both the TPOC event and the ORM termination date when they occur, independently.
  • Improper reporting of TPOC amount in Liability settlements – In liability cases where several insurers are individually responsible for payment, the following directive was given. If there are separate settlements, only report the amount of your settlement. In cases where there is joint and several liability, each RRE must report the full TPOC amount.
  • Beginning January, 2012, RRE’s will receive emails asking each to confirm the accuracy of the RRE’s profile information in order to renew. Emails will be sent both the authorized representative and to the account manager. The representative must contact the EDI representative to confirm accuracy, or to update the profile. The authorized representative will also need to sign and submit newly assigned profile. If not signed, the RRE’s EDI application might be revoked (If the authorized representative is no longer with company, account manager should get email and can respond). RRE’s should expect this and should let their EDI representative know if either or both leave the company.
    Those were the primary issues discussed during the teleconference, with many questions surrounding the improper denial of Medicare coverage. The next Town Hall Teleconference will occur on Wednesday December 14th, and that call will focus on both policy matters.

For more information on SCHIP 111 , please contact Tower MSA Partners @ 888.331.4941 or email your questions to

Top 10 Drugs Prescribed For Workers’ Compensation Claims

Posted on November 21, 2011 by Tower MSA Partners

A recent study by NCCI Holdings, Inc. reports the top 10 most popular drugs prescribed for workers’ compensation claims.


Workers compensation medical costs per claim average more than $6,000 and soar to nearly $25,000 for lost-time claims. The report examined workers compensation prescription drug (Rx) use, a medical expense that makes up 19% of all workers compensation (WC) medical costs.

Other key findings of the report on drugs prescribed for workers’ compensation were:

• The indicated Rx share of total medical is 19%; this is slightly higher than the estimate given in the 2010 update
• OxyContin® climbs from the number 3 WC drug in Service Year 2008 to number 1 in Service Year 2009
• Hydrocodone-Acetaminophen drops from the top WC drug in Service Year 2008 to number 3 in Service Year 2009
• Recent overall cost increases are driven more by utilization increases than by price increases
• Physician dispensing continues to increase in Service Year 2009 in almost every state
• Increased physician dispensing is associated with increased drug costs per claim
• Per-claim Rx costs vary significantly by state

For Media Inquires, Contact:

Helen King Patterson

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