Obtaining CMS recognition of state statutory limitations on medical care in order to limit the MSA allocation has always proven difficult, but not impossible.  As those who have Georgia WC claims know, since July 1, 2013, the state limits medical care in non-catastrophic comp claims to 400 weeks from the date of injury.  While this is old news, payers may not recognize the statute’s potential impact on MSAs. If certain conditions are met, CMS will agree to limit the MSA based upon the 400-week limitation.  

The CMS WCMSA Reference Guide says the following in regard to limitations such as Georgia’s:

Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate.

Accordingly, parties who wish to have the MSA limited based upon this statutory provision must draft and obtain the judge’s approval on an order which:

• Identifies the specific injuries arising from the work accident.

• States the claimant’s injuries arising from the accident have not been designated as catastrophic under the statute.

• Confirms the claimant is entitled to no medical treatment beyond the 400 weeks from the date of accident.

• Confirms the claim does not meet any of the exceptions found in the statute, i.e. use of a spinal cord stimulator.

If such an order is submitted with the MSA, CMS will agree to limiting the allocation to the approximate balance of years remaining on the 400 weeks.

Case Study

A Georgia claim was referred to Tower for MSA preparation. Both the claimant’s actual and rated age were 66, which normally calls for an MSA allocated over 19 years.  The MSA allocated over 19 years would have been $69,286.  However, the MSA approved by CMS and allocated over six years was $24,161.  This result was obtained by sending the MSA submission along with a court order from the Georgia Workers’ Compensation Board that confirmed the 400-week limitation applied in this case.

Practical Implications

Obtaining these court orders requires cooperation between attorneys for employer/insurer and claimant as well as the judge.  When such cooperation is possible, as demonstrated by the case study, the MSA can be allocated pursuant to state statute.  CMS approval of the limited MSA then gives claimant assurance that if the funds prove insufficient–which may be the case given it is not funded over life expectancy–then Medicare will pay for future injury-related medical care. 

If you have any questions please contact Tower’s Chief Compliance Officer, Dan Anders, Esq., at Daniel.anders@towermsa.com

As we come to the end of 2019, put on your party hats, toot your horns and clink your champagne glasses, as we introduce Tower’s MSP Compliance Countdown.  The MSP Compliance Countdown provides a quick summary of, in our opinion, the top ten Medicare Secondary Payer compliance stories in 2019.  So, start dropping the MSP compliance ball and here we go: 

10.  Electronic Payment Option Added to MSPRP – On April 1, 2019, the Centers for Medicare and Medicaid Services (CMS) added an option to the Medicare Secondary Payer Recovery Portal (MSPRP) allowing for reimbursement of Medicare conditional payment demands by direct payment from a checking or savings account, debit card or PayPal.  While convenient for Medicare beneficiaries, insurer and employer payers say this does not work with their payment processes. It is our understanding that CMS may consider expanding this option to other payment methods in 2020.

9.  U.S. Attorney Again Takes on Plaintiffs’ Attorneys for Failure to Reimburse Medicare – On March 18, 2019, the U.S. Attorney for the District of Maryland announced a $250,000 settlement agreement with the law firm of Meyers, Rodbell & Rosenbaum, P.A., as a result of allegations the firm failed to reimburse the United States for Medicare payments made to medical providers on behalf of a firm client.  This followed a 2018 action by a U.S. Attorney in Pennsylvania who reached a $28,000 settlement with a plaintiffs’ firm for failing to reimbursement Medicare.  Notably, just last month, the Maryland U.S. Attorney obtained a $90,000 settlement from a plaintiffs’ firm that had referred the case to co-counsel. 

8.  Open Debt Reports Available in the MSPRP – A 2019 update to the MSPRP provides a useful tool for insurer and self-insured entities to identify outstanding or unknown Medicare conditional payment demands.  Called the Open Debt Report, it is available to insurers and self-insured organizations, or as CMS calls them Responsible Reporting Entities (RREs), that have registered for MSPRP access (Tower can also access the reports when it is the Recovery Agent for the RRE). 

7.  Self-Reporting Functionality Added to MSPRP – In January, CMS added a self-reporting function to the MSPRP enabling MSP cases to be reported through the portal versus via phone or written correspondence to the Benefits Coordination & Recovery Center (BCRC).  Primarily a time-saving measure, it is a welcome improvement over having to speak to a BCRC representative who takes down the claim information and enters it into their system.

6.  Update to CMS WCMSA Reference Guide Clarifies Lyrica Policy – Throughout 2018, CMS increasingly added Lyrica (brand-name only at the time) to MSAs for diagnoses that had previously been considered non-Medicare covered.  In a January update to its reference guide, CMS clarified its reasoning for considering Lyrica Medicare-covered for radicular pain stemming from the spinal cord (cervical, thoracic and lumbar), even when there is no evidence of what is defined as a “traumatic” spinal cord injury.

5.  CMS Adds Electronic Submission Option for MSA Attestations – On October 7, 2019, CMS released an updated Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide which added the capability for both self- and professional-MSA administrators to electronically submit annual attestations for CMS-approved MSAs.  Previously, the sole option for an MSA administrator was to complete the attestation form and submit to Medicare’s BCRC via mail. Electronic submission of annual attestations benefits both CMS and MSA administrators as it facilitates better and faster coordination of benefits. 

4.  Proposed Rules on LMSAs and Section 111 Penalties Again Delayed – The wait continues for CMS to issue proposed rules on Liability MSAs (LMSAs) and Section 111 Mandatory Insurer Reporting penalties.  CMS’s first notice in December 2018 indicated the proposed rules would be issued in September 2019.  Subsequent notices moved the date to October 2019 and we now have notices moving the date for issuing the proposed rule on penalties to December 2019 (no rule have been released as of the date this article was published) and for rules on LMSAs to February 2020.

3.  Lyrica Goes Generic – In July 2019, the FDA approved multiple applications for generic Lyrica.  While not directly related to MSP compliance, this action has a notable impact on MSA allocation amount given the above-noted use of Lyrica for neuropathic back pain.  Lyrica went from $9.36 for a 50 mg pill at brand name to $0.90 today for the generic, effectively removing it as a significant cost-driver in the MSA.

2.  CMS Expands MSA Amended Reviews & Modifies Consents to Release in Updated Reference Guide – In October 2019, CMS released an updated WCMSA Reference Guide which expanded the Amended Review MSA lookback from four to six years post the prior MSA approval.  It also introduced some additional language to the Consent to Release form which requires the claimant to initial that the WCMSA was explained to him or her and that he or she approves of the contents of the MSA submission.  While the expansion of the Amended Review MSA is welcome news, the revised Consent to Release form, which becomes effective 4/1/2020, may cause delay in the MSA submission process.

1.  U.S. Appellate Court Holds Guaranty Fund Not a Primary Plan under the MSP Act – In an October 10, 2019 decision from the U.S. Court of Appeals for the Ninth Circuit, the California Insurance Guarantee Association (CIGA) was found not to be a primary plan under the Medicare Secondary Payer (MSP) Act.  The result of this decision, if not reversed on appeal, is that CIGA would have no responsibility to reimburse Medicare for conditional payments or to allocate funds in a Medicare Set-Aside (MSA) for future medical.

We chose the CIGA decision as #1 in our countdown because it stands for the principle that we should not readily accept everything CMS says as gospel.  While CMS rightly works to protect the Medicare trust fund, it should be challenged when it goes beyond its statutory and regulatory authority or does not even follow its own MSA review policy.

Every day Tower challenges CMS, whether it is the result of overinclusive Medicare conditional payments or unnecessary or mispriced medical care allocated in an MSA.  Notably, this year Tower repeatedly challenged CMS’s inclusion of urine drug screens in MSAs where there was no past history of use.  The result, CMS corrected its policy, saving employers and carriers tens of thousands of dollars.

If we can leave you with one New Year’s resolution, it is to not be afraid of challenging CMS, when warranted.   Tower will certainly continue to so on your behalf in 2020.

May you have a warm and wonderful holiday and all the best in the new year. 

CMS recently released Version 3.0 of its WCMSA Reference Guide, what we informally call the “MSA bible.”  The reference guide provides most CMS policy and procedures relating to its review of Workers’ Compensation Medicare Set-Asides.

The updated guide can be found here.

Notable additions or changes to this version are detailed below with takeaways and comments.

Amended Review Criteria Expanded to Six Years

CMS has expanded the Amended Review MSA lookback from one to four years to one to six years post the prior MSA approval.  As a refresher, the Amended Review process in Section 16.2 allows a new MSA to be submitted following a prior approval if all of the following criteria are met:

• CMS has issued a conditional approval/approved amount at least 12 but no more than 72 months prior,
• The case has not yet settled as of the date of the request for re-review.
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Tower appreciates CMS expanding the lookback to six years as this should allow for more cases to be submitted through this process and potentially settle with an MSA that better reflects the claimant’s current and future course of treatment.  If your case may meet this criteria, please contact Tower to review and determine the feasibility of submitting an Amended Review MSA.

Claimant Authorization to Submit Added to Consent to Release Form

Longstanding policy requires any MSA submitted to CMS must include a Consent to Release form signed by the claimant.  The primary purpose of the document is to provide Medicare beneficiary authorization for CMS to communicate with the MSA submitter concerning the workers’ compensation claim. 

Per the updated reference guide, effective 4/1/2020 a consent must include the following language:

Further, I have had the Workers’ Compensation Medicare Set-Aside Arrangement need and process explained to me, and I approve of the contents of the submission.

Beneficiary Initials: ____

As a result of the addition of this statement, CMS is effectively asking the claimant to approve the MSA along with supporting documents in the submission.  We anticipate two consequences as a result of this addition:

• Claimants will sign the consent but forget to initial this section.
• Claimants will not sign the consent until such time as they review the MSA and perhaps the supporting documentation, i.e. medical records, which are submitted with the MSA.

While we understand CMS wanting to ensure the claimant understands the purpose of the MSA, we would assert this is already effectively done, in most cases, as part of the settlement process. 

At this time, Tower will continue to use the Consent to Release without the requirement that the claimant approve the MSA submission.  However, we will need to begin using the revised consent as we get closer to 4/1/2020.

Submission of Annual Attestations through the WCMSAP

As we previously discussed in CMS Adds Electronic Submission Option for MSA Attestations, CMS is now allowing MSA self and professional administrators to submit annual attestations through the Workers’ Compensation Medicare Set-Aside Portal (WCMSAP).  Section 11.1.1. of the guide was updated to reflect the addition of this feature and a new Section 17.6 “Electronic Attestations” was added which directs both MSA self and professional administrators to the WCMSAP User Guide for further information on submitting annual attestations electronically.

Policies Added to Address Opioid Epidemic

CMS has been very active in the past two years at addressing the opioid epidemic among its Medicare beneficiaries.  The exception to this has largely been the MSA program.

In an effort to address opioids in MSA CMS added the following statement to section 17.1 on MSA administrators:

CMS highly recommends professional administration where a claimant is taking controlled substances that CMS determines are “frequently abused drugs” according to CMS’ Part D Drug Utilization Review (DUR) policy. That policy and supporting information are available on the web at https://cms.gov/Medicare/Prescription-Drug-Coverage/PrescriptionDrugCovContra/RxUtilization.html.

CMS takes this further in Section 17.3 by stating:

CMS expects that WCMSA funds be competently administered in accordance with all Medicare coverage guidelines, including but not limited to CMS’ Part D Drug Utilization Review (DUR) policy. As a result, all WCMSA administration programs should institute Drug Management Programs (DMPs) (as described at https://www.gpo.gov/fdsys/pkg/FR-2018-04-16/pdf/2018-07179.pdf) for claimants at risk for abuse or misuse of “frequently abused drugs.”

While MSA professional administration is recommended for most MSAs, CMS is correct in asserting it is of special value for a claimant utilizing opioid medications.  MSA professional administrators like our partner, Ametros, can readily provide the type of drug management program expected by CMS.  We applaud CMS for implementing these guidelines addressing opioid use in MSAs.

If you have any questions regarding theses MSA updates, please contact Tower’s Chief Compliance Officer, Dan Anders, at (888) 331-4941 or daniel.anders@towermsa.com.

In an October 10, 2019 decision from the U.S. Court of Appeals for the Ninth Circuit, the California Insurance Guarantee Association (CIGA) was found not to be a primary plan under the Medicare Secondary Payer (MSP) Act.  The result of this decision, if not reversed on further appeal, is that CIGA would have no responsibility to reimburse Medicare for conditional payments or to allocate funds in a Medicare Set-Aside (MSA) for future medical.  Whether this decision applies to other state guaranty associations or funds depends on whether that state is located within the Ninth Circuit and on the statutory language that established the fund.

Background on CIGA Case

CIGA is a statutorily created association that requires its insurer members to pay premiums, which are then used to discharge an insolvent insurer’s covered claims.  The statute specifically indicates CIGA is a payor of last resort and cannot reimburse state and federal government agencies, including Medicare.

Tower previously reported on CIGA’s suit against Medicare, Federal Court Holds Against Medicare Practice of Over-Inclusive Reimbursement Demands and U.S. District Court Declares CMS Practice of Over-Inclusive Reimbursement Demands to be Unlawful, but Withholds Injunction.  In the lower court, the judge had quickly dismissed CIGA’s argument that it was not a primary plan, subject to the provisions of the MSP Act, by focusing on CIGA’s obligation to pay for workers’ compensation medical benefits for the insolvent insurer.  The judge went on to address the CMS practice of claiming reimbursement for a charge that includes both injury-related and non-injury-related services.  While the District Court for the Central District of California found CMS’s practice unlawful as the state law requires only payment for injury-related charges, the court did not issue an injunction stopping this CMS practice.  

Appeals Court Holds CIGA is Not a Primary Plan

On appeal, the focus shifted back to whether CIGA was a primary plan and thus subject to the MSP Act.  The appellate court indicated the question is not whether CIGA made workers’ compensation payments on a claim from an insolvent insurer, but whether CIGA is a workers’ compensation plan.  The MSP Act, 42 U.S.C. § 1395y(b)(2)(A)(ii), defines entities that are primary plans to Medicare as follows:

payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

The court found CIGA does not fall into any of these categories and instead falls into the category or class of “insolvency insurance” as it is “an insurer of last resort.”  Based upon a review of the MSP Act and its history, the court found that the primary plan provisions do not preempt state law. (Federal preemption means that when federal and state law are in conflict, the federal law is followed rather than the state law).

To argue its position that the state law is preempted, the federal government cited the 1996 decision from the U.S. Court of Appeals, First Circuit, in U.S. v. Rhode Island Insurer’ Insolvency Fund, 80 F.3d 616 (1^st Cir. 1996), in which the court found this guaranty fund’s statutory provision requiring claimants to seek recovery from any governmental insurance, e.g., Medicare, before seeking reimbursement from the fund, to be preempted by the MSP Act.

The Ninth Circuit distinguishes its decision by noting the Rhode Island statutory scheme deems the fund to be the new insurer upon insolvency of the old insurer.  In other words, the Rhode Island fund steps into the shoes of the insolvent carrier.  In contrast, the court holds that based on the state statute, CIGA does not become the insurer. Instead, CIGA is only authorized to disburse funds for “covered claims” from the insolvent insurer.  A key distinction for the court.

Practical Implications

This decision is only binding upon the federal courts within the Ninth Circuit, namely Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. To determine whether this decision may apply to guaranty funds in those states, each fund would need to review its statutory language against the California statutory language that was determinative in this case.  For funds located outside the Ninth Circuit, this decision may be persuasive to federal district and circuit courts if asked to rule on the issue.  

CMS has the option to first appeal the decision to the full circuit (called en banc), meaning all judges sitting in the Ninth Circuit would hear the case.  If this is turned down, which is likely, then an appeal can be filed with the U.S. Supreme Court, which may or may not choose to hear the case.

Finally, compliments to CIGA for maintaining this litigation, which has resulted in decisions addressing the extent of Medicare conditional payment recovery and defining whether a guaranty fund is a primary plan under the MSP Act.

If you have any questions, please contact Tower’s Chief Compliance Officer, Dan Anders, at daniel.anders@towermsa.com or (888) 331-4941.