MSP Compliance Blog

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

Lyrica Approved for Spinal Neuropathic Pain – What Are the MSA Implications if Pfizer Extends Patent?

Posted on July 3, 2012 by Tower MSA Partners

On June 21, 2012, the Food and Drug Administration announced its approval of Lyrica for use in the management of neuropathic pain associated with chronic, debilitating spinal cord injuries. Lyrica, the brand name for pregabalin, is manufactured by Pfizer (NYSE: PFE) and is already widely used to treat fibromyalgia pain.

Prevalence of SCI Associated Neuropathic Pain
According to Pfizer, about 40 percent of the 270,000 Americans with spinal cord injuries suffer from chronic neuropathic pain that they describe as severe or excruciating. An estimated 12,000 new spinal cord injury patients are diagnosed in the U.S.each year.

Patients may experience neuropathic pain above, at or below the level of the spinal cord injury, and it may persist for up to 25 years. The pain stems from traumatic causes, such as motor vehicle accidents, violence, falls and sports injuries; where displaced bone fragments, disc material, or ligaments bruise or tear into spinal cord tissue.

Spinal neuropathic pain can also stem from non-traumatic causes, such as congenital and developmental abnormalities, genetics, infections and inflammation, removal of a benign spinal tumor and spinal cord ischemic stroke.

Treatment Options Previously Available
“Until now, no FDA approved treatment options were available in the U.S.for people with neuropathic pain associated with spinal cord injury, a condition which can be extremely disabling,” said Steven J. Romano, MD, senior vice president of Pfizer’s global primary care unit.

The FDA’s approval was based on studies of 357 patients – some with traumatic spinal cord injuries, and some with both traumatic and non-traumatic injuries. In addition to Lyrica, patients in the randomized, double-blind, placebo controlled Phase III trials were allowed to continue taking other pain medications, including NSAIDS, opioids and non-opioids.

Pain Reduction & Side Effects
According to Pfizer, patients taking Lyrica received up to a 50% reduction in pain than did patients receiving a placebo. Some experienced relief as early as week one and continuing through the duration of the 12 and 16 week trials.

Side effects experienced by patients included somnolence, dizziness, dry mouth, fatigue and peripheral edema.

Pfizer recently halted studies testing Lyrica’s effectiveness in treating neuropathic pain caused by HIV infection or diabetes after preliminary results showed that it was no more effective than a placebo.

Potential Impact on WCMSA and Settlement Cost
Though FDA approved only for neuropathic pain associated with fibromyaligia, Lyrica has consistently been listed in the Top 5 drugs used ‘off label’ in workers’ compensation (NCCI Research Brief, Workers’ Compensation Prescription Drug
Study: 2011 Update).  And, while CMS, in its May 2010 Memo, noted that off label drugs would be approved for inclusion in a WCMSA only as follows: For a Part D drug to be covered by Medicare, and thus included properly in a WCMSA, the drug should be prescribed for an outpatient use that is approved under the Federal Food, Drug, and Cosmetic Act [21 U.S.C.A. § 301 et seq.], or supported by one or more citations included or approved for inclusion in any of the compendia described in subsection (g)(1)(B)(I) of 42 U.S.C. Section 1396r-8. “,  in practice, CMS has included Lyrica as an approved drug more frequently than its has accepted its exclusion from the WCMSA based on the cited compendia.

As an added cost to those who prepare WCMSA’s, the recent FDA approval of Lyrica for spinal cord injuries allowed Pfizer to apply for an extension to its patent, and on July 19, 2012, patent rights preventing any generic substitutions of Lyrica® were extended by a district court until at least 2018.

A generic version of Lyrica  called ‘Lupin’ was approved on July 5th, 2012, which would have make it available for use in the WCMSA next summer.  Unfortunately, the district court’s decision to extend the patent rights will prevent the sale of this generic until December 2018.  As a result, MSA providers will be forced to price for the ‘branded’ single source version of Lyrica for an extended period of time, thus making the MSA cost projection for life expectancy much higher.

At Tower MSA Partners, our methdology, as it relates to Lyrica will continue to be as follows:

  1. Review the appropriateness of the medical and drug treatment for the specific injury with our panel of physicians.
  2. Identify triggers that warrant intervention and stop the WCMSA process.
  3. Work with the adjuster to establish an action plan to change treatment.
  4. Involve our team of physicians to review and contact the treating physician.

Combining evidentiary based medical guidelines with peer-to-peer contact, many treating physicians have been open to dialogue and willing to make changes.

As one of the most expensive drugs prescribed in workers’ compensation, we see the FDA approval of Lyricanal for spinal cord injuries to be of concern to those who seek to settle claims involving future medical for Medicare beneficiaries.  Lyrica is, and will continue to be, a significant cost driver for the MSA.  We do not, however, anticipate a change in our course of action when reviewing medical and pharmacy records prior to completing the MSA.  We will include Lyrica among our list of pre-MSA triggers, and will work proactively with our clients to get it removed by the treating physician prior to submission of the MSA for CMS approval.

Going forward, we will continue to monitor Lyrica and the prescribing patterns followed in workers’ compensation.  We will also monitor CMS’s inclusion of Lyrica as an approved drug for spinal cord injuries when reviewing a WCMSA.  For more information about Lyrica, or any  aspect of our pre-MSA review process, please contact us directly.

The Rising Cost of Opioid Narcotics In Workers Compensation

Posted on June 23, 2012 by Tower MSA Partners

New studies and research on Narcotics In Workers’ Compensation.

The  American College of Occupational and Environmental Medicine states, “the overuse of opioid therapy to treat chronic pain conditions is becoming epidemic in the United States,” and, “there are many treatments that should be considered before opioids”. According to this organization:

  • “Opioids are  becoming more controversial in large part because of … markedly elevated eath risks that have paralleled increases in consumption of opioids narcotics)”
  • “Routine use of opioids for the treatment of chronic nonmalignant pain conditions is not recommended”
  • “Opioids are recommended for select patients with chronic persistent pain, neuropathic pain, or CRPS (complex regional pain syndrome).”

Two years ago, NCCI released a study on the use of narcotics in workers compensation. Findings from that study include the following:

  • There is a correlation between drug abuse treatments and heavy narcotic use
  • There has been an increase in early narcotic use
  • The use of narcotics can continue for many years

In the update released on June 5, 2012, changes and key trends identified by NCCI were as follows:

  • Per-claim narcotic costs have increased
  • There have been changes in which narcotics are most commonly used
  • Narcotic use is concentrated among a small percentage of claimants
  • Initial narcotic use is indicative of future use

Overall Trends

The study begins with a look at the average narcotic cost per workers compensation claim with medical transactions. NCCI found that per-claim costs grew steadily from 2001 to  2004, remained fairly flat for a few years, and then increased in 2009. From 2001 to 2004, per-claim narcotic costs grew at an average of 18 percent per year. From 2004 to 2008, per-claim narcotic costs grew at an average of 1 percent per year. While there has generally been lower growth in recent years, the narcotic cost per-claim in 2009 is 14 percent greater than it was in 2008.

Narcotic use in workers compensation is becoming more common. In 2001, 28 percent of all claimants with medical transactions received at least one prescription drug within one year following injury and 8 percent received narcotics. In 2008, these numbers increased to 38 and 13 percent respectively. This implies that in 2008, over one-third of claimants with prescriptions received narcotics, up from 27 percent in 2001.

 Trends in Active Ingredients

NCCI identified seven active ingredients that account for more than 95 percent of the total cost of narcotics used in workers compensation. These include: morphine sulfate, oxymorphone, fentanyl citrate, fentanyl, oxycodone, oxycodone with acetaminophen, and hydrocodone BIT with acetaminophen.

The only major shifts in market share by active ingredient over the past few years have been a simultaneous reduction in the use of Fentanyl Citrate and an increase in the use of Oxymorphone HCL. While Oxymorphone HCL has been available through an injection since 1959, it only became available as an oral tablet in mid-2006.

Narcotic Consumption Among Claimants

Narcotic use in workers compensation is highly concentrated among a small percentage of claimants.  The narcotics consumed by the top 1 percent of claimants receiving narcotics accounts for close to 40 percent of all narcotic costs; the narcotics consumed by the top 10 percent of claimants receiving narcotics accounts for about 80 percent of all workers compensation narcotic costs. While narcotic use is highly concentrated, NCCI also noted a slight downward trend in the share of narcotic costs for the top users.

Tracking Morphine Equivalent Dosage (MEQ)

NCCI first investigated the persistence of narcotic use in workers compensation in 2009 and found that, while the probability of continued use declined with time, narcotic use could continue for many years. This study expands the 2009 analysis by investigating the relationship between the amount of narcotics initially consumed and the persistence of their use by tracking each drug based on its respective morphine quivalent dosage (MEQ).

Example:  According to, the usual adult dose for time-released Oxycodone (OxyContin®) is 10 mg orally every 12 hours.  Assuming a claimant consumes 10 mg pills:

  • 100 MEQ is equivalent to approximately 7 tablets of 10mg OxyContin®
  • 370 MEQ is equivalent to approximately 25 tablets of 10mg OxyContin®
  • 825 MEQ is equivalent to approximately 55 tabletss of 10mg OxyContin®

In its findings NCCI first noted that early narcotic use was indicative of  long term use with the average MEQ per claim receiving narcotics increasing with claim maturity. Second, NCCI found that the MEQ ranking was maintained in subsequent quarters; for example, those claims defined the by highest MEQ in initial use maintained its higher-than-other-claimant status throughout the life of the claim.

Conclusions and Commentary

Pain management is a necessary part of the worker’s compensation rehabilitation process, but the abuse of opioids can cause hazardous, life-threatening side effects for which payers may ultimately be held responsible. Payers who track and identify use patterns can better uncover any potential abuses before they become a litigious issue.

PBM reports that identify triggers such as chronic opioid narcotic use, high dollar narcotic spend, multiple physicians, multiple pharmacies are widely available across all providers.  With this level of information regarding claimants at risk readily available, why then does the opioid narcotic issue appear to be getting worse?  It is my belief that there is a disconnect between the information and the action.

How do we get the appropriate information into the hands of those who can, and will,
act on it?  What is the appropriate action to take for each claimant?  Are there jurisdictional requirements that must be met when intervention is warranted?  When and by whom should contact be made to the treating physician?  How do we get the agreement from the treating physicians to modify treatment?  Who follows through to verify that treatment is modified?

The items listed above are a subset of the many questions we ask at Tower MSA
Partners with every referral.  We work with clients to ‘stage’ claims prior to settlement and the MSA, and to address medical, pharmacy and legal issues as early in the claims process as possible.  We contact the treating physician when changes are needed and obtain written agreement.  We then follow through to make certain the changes are made and outcomes are achieved.

When physicians refuse to modify treatment, we also work with clients to identify specific, jurisdictionally approved strategies to obtain positive outcomes.  Depending on state of jurisdiction, we assist clients to challenge treatment, pursue a change in treatment  provider, close formularies, initiate dispute resolution, send the claim through utilization review, etc.

Potential strategies to address the rising problem with opioid narcotics involve 4
critical steps:

  1. First, establish the internal triggers you wish to track;
  2. Be proactive in identifying cases that meet your triggers;
  3. Act on the information;
  4. Follow through.

NCCI’s full report on opioid narcotics in workers’ compensation can be found at NCCI: Narcotics in Workers Compensation


NCCI Releases New Study on Effects of Obesity in Workers Comp

Posted on June 20, 2012 by Tower MSA Partners

There is mounting evidence of obesity contributing to the cost of workers compensation. Longitudinal studies by Duke University of its own employees-and by Johns Hopkins University of employees of a multi-site U.S. aluminum manufacturing company-point to substantially higher odds of injury for workers in the highest obesity category. Further, a 2011 Gallup survey found that obese employees account for a disproportionately high number of missed workdays, thus causing a significant loss in economic output. Finally, earlier NCCI research of workers compensation claims found that claimants with a comorbidity code indicating obesity experience medical costs that are a multiple of what is observed for comparable non-obese claimants.

The study shows that, based on Temporary Total and Permanent Total indemnity benefit payments, the duration of obese claimants is more than five times the duration of non-obese claimants, after controlling for primary ICD-9 code, injury year, U.S. state, industry, gender, and age. When Permanent Partial benefits are counted toward indemnity benefit duration as well, this multiple climbs to more than six.

And if the statistics aren’t enough to encourage action, consider this….

Employee is a 54 yr old laborer working for a landscaping company.  He is 5’4″ tall and weighs 310 pounds.  In 2002, while walking on grass with a bucket of weeds, he tripped on a rock.   Injured worker treated conservatively for years for knee and back pain as he was too large for an MRI (even the open ones only take up to 300 pounds).  The doctors felt that the only option for treatment was knee replacement surgery, but injured worker was told his obesity precluded him from being a candidate – he needed to lose 100 pounds before surgery was feasible.

By 2004 injured worker was over 350 pounds and unable to work. Employer continued to pay both indemnity and medical.  At this point, employer authorized a weight loss program and also paid for gym membership and transport.  To be certain progress was being made, employer authorized surveillance.  Injured worker was photographed going to gym and sitting.

In February, 2011, injured worker had lapband surgery.  He lost 60 pounds in first 6  months  -at this point he is down to 250 lbs and  requires surgery to remove skin, but still 50 pounds to go before knee surgery can occur.

Injured worker is now 64 yrs old now, not able to work and still waiting for surgery…

This incredible story is also true, and one I’m sure many of us can repeat from our own experiences…. as we’ve all heard many times, “truth is stranger than fiction”.

As a Medicare Set Aside company, Tower MSA Partners is reminded everyday of the significant impact of obesity on future medical cost  (Duke University,”Obesity and Workers’ Compensation: Results from the Duke Health and Safety Surveillance System”, 2007,  lists mthe edical cost of obese patients as 6.8 times that of patients of recommended weight) .   We also see the impact of obesity on both the quality of life and the life expectancy of the Medicare beneficiary.  Taking it a step further, when one considers the strong relationship between high opioid narcotic use and the lifestyle changes that almost invaribly lead to obesity, we find yet another reason to work diligently to identify these combination triggers as early in the life of the claim as possible.

The free report is available from NCCI here: NCCI Study on Effect of Obesity in Workers Comp.

Centers for Medicare and Medicaid Services (CMS) Advanced Notice of Proposed Rule Making

Posted on June 18, 2012 by Tower MSA Partners

This advance notice of proposed rulemaking solicits comment on standardized options CMS has considered making available to beneficiaries and their representatives to clarify how they can meet their obligations to protect Medicare’s interest with respect to Medicare Secondary Payer (MSP) claims involving automobile and liability insurance (including self-insurance), no-fault insurance, and workers’ compensation when future medical care is claimed or the settlement, judgment, award, or other payment releases (or has the effect of releasing) claims for future medical care.

To be considered, comments regarding CMS-6047-ANPRM must be recieved on or before 5pm on August 14, 2012.

The primary purpose of this ANPRM is to respond to affected parties’ requests for guidance on “future medicals” MSP obligations, specifically, how  individuals / beneficiaries can satisfy those obligations effectively and efficiently.   Currently, individuals involved in certain workers’ compensation situations are able to use Medicare’s formal, yet voluntary, Medicare Set-Aside Arrangement (MSA) review process in order to determine if a proposed set-aside amount is sufficient to meet their MSP obligations related to “future medicals.” To date, Medicare has not established a similar process for  individuals/beneficiaries to use to meet their MSP obligations with respect to  future medicals” in liability insurance (including self-insurance) situations. CMS is soliciting comment on whether and how Medicare should implement such a similar process in liability insurance situations, as well as comment on the proposed definitions and additional options outlined later in this section. CMS is further soliciting suggestions on options they have not included later in  this section. In its own words, CMS is most interested in the feasibility and usability of the outlined options and whether implementation of these options would provide affected parties with sufficient guidance.

Medicare is considering the options listed below in an effort to develop an efficient and effective means for addressing “future medicals.” Options 1 through 4 would be available to Medicare beneficiaries as well as to individuals who are not yet beneficiaries. Options 5 through 7 would be available to beneficiaries only. CMS is requesting comment on the feasibility and usability of all of the options, and also requests proposals for additional options for consideration.

The seven (7) proposed options include the following:

Option 1. The individual/beneficiarypays for all related future medical care until his/her settlement is exhausted and documents it accordingly.

The beneficiary may choose to govern his/her use of his/her settlement proceeds himself/herself. Under this option, he/she would be required to pay for all related care out of his/her settlement proceeds, until those proceeds are appropriately exhausted. As a routine matter, Medicare would not review documentation in conjunction with this option, but may occasionally request documentation from beneficiaries selected at random as part of Medicare’s program integrity efforts.

Option 2. Medicare would not pursue “future medicals” if the individual/beneficiary’s case fits all of the conditions under either of the following headings:

a. The amount of liability insurance (including self-insurance) “settlement” is a defined amount or less and the following criteria are met:

  • The accident, incident, illness, or injury occurred one year or more before the date of “settlement;”
  • The underlying claim did not involve a chronic illness/condition or major trauma;
  • The beneficiary does not receive additional “settlements;” andShow citation box
  • There is no corresponding workers’ compensation or no-fault insurance claim.

b.  The amount of liability insurance (including self-insurance) “settlement” is a defined amountor less and all of the following criteria are met:

  • The individual is not a beneficiary as of the date of “settlement;”
  • The individual does not expect to become a beneficiary within 30 months of the date of “settlement;”
  • The underlying claim did not involve a chronic illness/condition or major trauma;
  • The beneficiary does not receive additional “settlements;” and
  • There is no corresponding workers’ compensation or no-fault insurance claim.

Option 3. The individual/beneficiary acquires/provides an attestation regarding the Date of Care Completion from his/her treating physician.

a. Before Settlement—When the individual/beneficiary obtains a physician attestation regarding the Date of Care Completion from his or her treating physician, and the Date of Care Completion is before the “settlement,” Medicare’s recovery claim would be limited to conditional payments it made for Medicare covered and otherwise reimbursable items and services provided from the Date of Incident through and including the Date of Care Completion. As a result, Medicare’s interest with respect to “future medicals” would be satisfied. The physician must attest to the Date of Care Completion and attest that the individual/beneficiary would not require additional care related to his/her “settlement.”

b. After Settlement—When the individual/beneficiary obtains a physician attestation from his or her treating physician after settlement regarding the Date of Care Completion, Medicare would pursue recovery for related conditional payments it made from the date of incident through and including the date of “settlement.” Further, Medicare’s interest with respect to future medical care would be limited to Medicare covered and otherwise reimbursable items and/or services provided from the date of “settlement” through and including the Date of Care Completion. The physician must attest to the Date of Care Completion and attest that the individual/beneficiary would not require additional care related to his/her “settlement.” CMS requests comment on the efficacy and feasibility of this option.

Option 4. The Individual/Beneficiary Submits Proposed Medicare Set-Aside Arrangement (MSA) Amounts for CMS’ Review and Obtains Approval.

Currently, CMS has a formal process to review proposed MSA amounts in certain workers’ compensation situations. Recently CMS has received a high volume of requests for official review of proposed liability insurance (including self-insurance) MSA amounts. This has prompted them to consider whether to implement a formal review process for proposed liability insurance (including self-insurance) MSA amounts. For more information related to workers’ compensation MSA process, please visit  CMS specifically solicits comment on how a liability MSA amount review process could be structured, including whether it should be the same as or similar to the process used in the workers’ compensation arena, whether review thresholds should be imposed, etc.

Option 5. The beneficiary participates in one of Medicare’s recovery options.

Recently, CMS implemented three options with respect to resolving Medicare’s recovery claim in more streamlined and efficient manners. Before a demand letter is issued, the beneficiary or his/her representative may participate in one of three recovery options, which allows the beneficiary to obtain Medicare’s final conditional payment amount before settlement. The three recovery options are as follows:

  • $300 Threshold—If a beneficiary alleges a physical trauma-based injury, obtains a liability insurance (including self-insurance) “settlement” of $300 or less, and does not receive or expect to receive additional “settlements” related to the incident, Medicare will not pursue recovery against that particular “settlement.”
  • Fixed Payment Option—When a beneficiary alleges a physical trauma-based injury, obtains a liability insurance (including self-insurance) “settlement” of $5,000 or less, and does not receive or expect to receive additional “settlements” related to the incident, the beneficiary may elect to resolve Medicare’s recovery claim by paying 25 percent of the gross “settlement” amount.
  • Self-Calculated Conditional Payment Option—When a beneficiary alleges a physical trauma-based injury that occurred at least 6 months prior to electing the option, anticipates obtaining a liability insurance (including self-insurance) “settlement” of $25,000 or less, demonstrates that care has been completed, and has not received nor expects to receive additional “settlements” related to the incident, the beneficiary may self-calculate Medicare’s recovery claim. Medicare would review the beneficiary’s self-calculated amount and provide confirmation of Medicare’s final conditional payment amount.

Each of the options is employed in such a way that Medicare’s interest with respect to future medicals is, in effect, satisfied for the specified “settlement.” Therefore, when a beneficiary participates in any one of these recovery options, the beneficiary has also met his/her obligation with respect to future medicals. CMS solicits comment on proposed expansions of these options and the justification for that proposed expansion, as well as any suggestions about how to improve the three options we recently implemented.

Option 6. The Beneficiary Makes an Upfront Payment.

CMS is currently considering two variations of an “upfront payment option.”

a. If Ongoing Responsibility For Medicals was imposed, demonstrated or accepted and medicals are calculated through the life of the beneficiary or the life of the injury.

If ongoing responsibility for medicals was imposed, demonstrated or accepted from the date of “settlement” through the life of the beneficiary or life of the injury, we may review and approve a proposed amount to be paid as an upfront lump sum payment for the full amount of the calculated cost for all related future medical care. This option would generally apply in workers’ compensation, no-fault insurance situations or when life-time medicals are imposed by law. In effect, this option may be used in place of administering a MSA if we have reviewed and approved a proposed MSA amount. CMS solicits comment on how to develop this process, the efficacy of it, and whether it would be utilized.

b. If Ongoing Responsibility for Medicals was Not Imposed, Demonstrated or Accepted.

If a beneficiary obtains a “settlement,” our general rule stated previously applies to the “settlement,” and ongoing responsibility for medicals has not been imposed on, demonstrated by or accepted by the defendant, the beneficiary may elect to make an upfront payment to Medicare in the amount of a specified percentage of “beneficiary proceeds.” This option would most often apply in liability insurance (including self-insurance situations, primarily due to policy caps. For the purposes of this option, the term “beneficiary proceeds” would be calculated by subtracting from the total “settlement” amount attorney fees and procurement costs borne by the beneficiary, Medicare’s demand amount (for conditional payments made by Medicare), and certain additional medical expenses the beneficiary paid out of pocket. Such additional medical expenses are specifically limited to items and services listed in 26 U.S.C. 213(d)(1)(A) through (C) and 26 U.S.C. 213(d)(2). The calculation of beneficiary proceeds does not include medical expenses paid by, or that are the responsibility of, a source other than the beneficiary.  CMS specifically solicits comment on how to develop this process, its efficacy, and whether it would be utilized. CMS further requests comment on the calculation of beneficiary proceeds, the appropriate percentage(s) to be used, and how the percentage(s) is/are justified.Show citation box

Option 7. The Beneficiary Obtains a Compromise or Waiver of Recovery.

If the beneficiary obtains either a compromise or a waiver of recovery, Medicare would have the discretion to not pursue future medicals related to the specific “settlement” where the compromise or waiver of recovery was granted. If the beneficiary obtains additional “settlements,” Medicare would review the conditional payments it made and adjust its claim for past and future medicals accordingly. CMS specifically solicits comment on whether this approach is practical and usable, as it relates to “future medicals.”

We encourage you to read and evaluate each of the seven options as they relate to your business and settlement objectives and email us at with questions, feedback and suggestions.  We will continue our due diligence as well, and will publish our thoughts as to the pro’s and con’s of each option.  As noted, we have 60 days to respond with comments and recommendations.

Click here for the complete version of CMS-6047-ANPRM.







Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act: 30 Days and Counting…. Can it Succeed?

Posted on June 18, 2012 by Tower MSA Partners

Introduced into the US House of Representatives on April 27, 2012, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012 (HR 5284) aims to streamline the settlement of workers’ compensation agreements by creating an exception to Medicare secondary payer requirements. The bill also provides language that could ease the path toward satisfying these requirements by using qualified Medicare set-aside arrangement (MSA) under these agreements.

Designed to apply to certain workers’ compensation settlements agreements, the bill proposes changes if any of the following criteria is present:

  1. The total settlement is $25,000 or under;
  2. The claimant is not eligible for Medicare at settlement date and is not expected to be eligible within 30 months;
  3. The settlement agreement does not limit or eliminate the claimant’s right to payment of future medical bills;
  4. The claimant is not eligible for future medical bill payments under the settlement.

US representative David Reichert (WA-8) introduced the bill in an attempt to improve the set-aside process for workers’ compensation claims. Current settlements that overlap with Medicare coverage create a lengthy review period on what constitutes the set-aside coverage amounts.

Currently, HR 5284 has been referred to the Subcommittee on Health for review. The bill has gained heavy support from industry organizations, including American Insurance Association (AIA), American Association for Justice (AAJ), American Bar Association (ABA), National Council of Self Insurers (NCSI), Property Casualty Insurers Association of America (PCI), UWC – Strategic Services on Unemployment & Workers’ Compensation (UWC), Washington Self-Insurers Association (WSIA), and Workers Injury Law and Advocacy Group (WILG).

Part of the problem may be that the legislation tries fixing what isn’t governed. There is a lack of any real definition of MSA from a regulatory sense. Would wrapping laws around an undefined practice work?

Also, industry buzz suggests that legislators are treating workers’ compensation issues much like they would group health issues. Also, detractors of the bill believe there is little to address the calculation of allocation amounts and too little consistency in understanding and applying CMS policies.

The success of H.R. 5284 will depend largely on how well the legislation understands the MSA environment. While the idea may be a good one, the actual practice may fall short of its intended goal.

For Media Inquires, Contact:

Helen King Patterson

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