Two years ago, CMS rolled out a policy that enabled submission of a new MSA even if an MSA had previously been approved for the same date of injury. The purpose of this “Amended Review” is to provide parties who have not settled the case an opportunity to update the MSA to better reflect the current and future course of medical care. Since its implementation, this policy has allowed many parties in workers’ compensation cases to move forward with a settlement and closure of medicals.

Does your MSA qualify?

CMS provides the following base criteria for an Amended Review:

Where the following criteria are met, CMS will permit a one-time request for re-review in the form of a submission of a new cover letter, all medical documentation related to the settling injury(s)/body part(s) since the previous submission date, the most recent six months of pharmacy records, a consent to release information, and a summary of expected future care.

• CMS has issued a conditional approval/approved amount at least 12 but no more than 48 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.

If you think your case may qualify, contact Tower to determine whether current medical records support a change in the MSA. Proper medical documentation is critical to ensuring CMS will agree to the Amended MSA. CMS requires an affirmative statement from a treating physician or physicians confirming the originally allocated treatment or medication has changed or is no longer necessary. The following case study illustrates how it works.

Amended Review Case Study

CMS approved an MSA on 5/7/2015 for $147,483. The parties were unable to settle the workers’ compensation case at that time. Nearly four years later, the parties were again ready to consider settlement, but the 2015 MSA no longer reflected the injured worker’s course of medical care.

A review of recent medical records caused Tower to suspect that a supplemental oxygen delivery system was no longer used and that the injured worker could switch from brand-name Crestor to generic. Tower’s Physician Follow-Up service obtained the treating physician’s signed statement regarding the discontinuation of the oxygen system and the injured worker’s current use of the generic, which enabled us to revise the MSA down to $46,171. It was submitted shortly before the Amended Review deadline and approved by CMS on 5/13/2019 for a $101,312 reduction from the previously approved MSA.

Key Takeaways

CMS will agree to a change in the previously approved MSA amount when the medical documentation supports the change. Since the Amended Review is a one-time opportunity, it is vital to conduct the review well before the deadline and to obtain proper medical documentation to support MSA modifications.

Finally, keep in mind that while the CMS Amended Review policy allows for an MSA that better reflects the current and future course of care, CMS does not require the settling parties to submit a new MSA, even when the criteria are met. Per our understanding of CMS WCMSA rules, the original approved MSA does not expire or otherwise become invalid.

This is another way Tower delivers on its promise of Compliance by the book, closure by the numbers.

WCI comes a little earlier this year (August 11-14), so make plans to attend now. Tower will present in two back-to-back sessions on August 14. Starting at 9 a.m., “Optimizing Settlement Outcomes by Measuring and Managing MSA Costs” stresses the importance of determining which metrics to use and how to use them to evaluate and improve your MSA program. Moderated by Michael Stack, CEO of AMAXX, the session features American Airline’s Kris Sallee and Tower’s Chief Compliance Officer Dan Anders who will also describe how clinical interventions produce MSAs that balance care, cost, and compliance.

Then, at 10 a.m., “Allaying the MSA Fear at Time of Settlement” examines reasons employers and injured workers avoid settling claims. Employers anticipate the MSA cost will be too high; injured workers worry that the funds will be too low, or they won’t be able to properly administer the MSA. Marques Torbert, CEO of the professional administration firm Ametros, and Joe Bornstein, a structured settlement consultant with Arcadia Settlements Group, join Kris, Dan, and Michael in a lively discussion of these challenges and their solutions and share case studies that resulted in a win-win for the employer and the injured worker.

For more information and to register for the conference, see https://www.wci360.com/conference/

Just like all of us, CMS makes occasional errors. Believe it or not, the government is not infallible! To protect our clients from unnecessary allocation costs, Tower takes a “lead, not follow” approach to deliver Medicare-compliant MSAs that are not overfunded. This means that we don’t just follow CMS’s rules to prepare and submit MSAs, we take the initiative to make sure CMS follows its own rules.

 

Tower challenges a CMS MSA counter-higher when our clinical and legal review produces a basis for a re-review request (a form of post-determination appeal). We typically submit re-review requests within 48 hours of receipt of the counter-higher and CMS responds in less than 14 days. Our challenges have yielded a 71% success rate and saved our clients hundreds of thousands of dollars.

 

As the following examples from the past six months demonstrate–whether its $2,000 or $200,000–Tower will dispute CMS’s calculations when we believe they are in error:

 

Miscalculated surgical pricing

CMS increased the cost of a knee replacement by $8,769. Tower submitted a re-review and stated CMS had incorrectly used the state fee schedule in calculating the surgical cost. After two re-reviews, CMS corrected the pricing to the proposed amount.

 

Addition of discontinued medication

CMS added a medication, Etodolac, that, per the medical records, had been replaced with another medication, Ibuprofen. Tower referenced the submitted medical records and Rx history on re-review and CMS agreed to remove the medication from the MSA for a $16,704 reduction.

 

Medication allocated at the wrong frequency

CMS increased the refill schedule of Tylenol #4 from every three months to monthly, increasing the MSA by $8,650. Tower submitted a re-review and cited the prescription payment history as confirming “as needed” use of the medication. CMS agreed and returned the MSA to the originally proposed amount.

 

Non-Medicare covered medication added

CMS added the medication Lyrica to the MSA resulting in a $205,658 increase in the allocation. Tower argued that Medicare coverage guidelines did not provide a basis for inclusion of Lyrica for treatment of a foot crush injury. After a re-review and escalating to CMS senior management, CMS agreed and removed the Lyrica from the MSA.

 

Treatment unrelated to the WC injury

CMS added left hip x-rays and MRIs even though the hip was not accepted on the WC claim. Tower disputed the tests’ inclusion and CMS agreed to remove, thus lowering the MSA by $2,657.

 

Miscalculated Rx pricing

CMS modified the pricing of Morphine Sulfate resulting in a $12,376 increase to the MSA. Tower advised CMS that it had used the incorrect NDC code to price the medication at $1.50 per unit versus the correct $0.73. CMS acknowledged the error and corrected.

 

Key Takeaways

The good news is that the above errors occur in the minority of MSA submissions. Most of the time CMS gets it right. However, when errors occur, Tower quickly identifies and submits a re-review request to CMS. And, in most cases, our re-review requests yield a cost-savings MSA that is Medicare-compliant. This is another way Tower delivers on its promise of Compliance by the book, closure by the numbers.

 

On March 18, 2019 the U.S. Attorney for the District of Maryland announced a $250,000 settlement agreement (See Press Release) 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 is the second such action taken by a U.S. Attorney’s office in the past year, with the first being the U.S. Attorney for the Eastern District of Pennsylvania who announced an agreement with a Philadelphia law firm to repay $28,000 in June 2018 (See Tower article: U.S. Attorney Recovers Against Plaintiff Attorney for Failure to Reimburse Medicare).

According to the release from the Maryland U.S. Attorney, “in and prior to 2012 Medicare made conditional payments to healthcare providers to satisfy medical bills for a client of the firm.” In December 2015 the law firm obtained a $1,150,000 medical malpractice settlement on behalf of their client. Medicare was notified of the settlement and demanded repayment of conditional payments made. The U.S. Attorney indicates that the firm refused to pay the debt in full, even when the debt became administratively final.

The U.S. Attorney pursued the law firm for the debt and reached the following settlement agreement:

The firm agreed to pay the United States $250,000 to resolve the Government’s claims.

The firm also agreed to (1) designate a person at the firm responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance.

 

Practical Implications

U.S. Attorney Robert K. Hur put it best, saying:

“Attorneys typically receive settlement proceeds for and disburse settlement proceeds to their clients, so they are often in the best position to ensure that Medicare’s conditional payments are repaid. We intend to hold attorneys accountable for failing to make good on their obligations to repay Medicare for its conditional payments.”

Since 2010, insurers and self-insurers have been required to electronically report most liability settlements involving Medicare beneficiary claimants to the Centers for Medicare and Medicaid Services (CMS) as part of the Section 111 Mandatory Insurer Reporting process. Consequently, the days of Medicare not being made aware of a settlement have long since passed. Medicare conditional payments should be investigated prior to settlement and demands for repayment addressed prior to the settlement amount being paid to the plaintiff attorney’s client.

There is an implication in the press release where it indicates “the firm refused to pay the debt in full, even when the debt became administratively final,” that the firm appealed the debt. While we do not know if that is the case here, it is nonetheless an important reminder that there is a five step Medicare conditional payment appeal process with four steps at the administrative level and the fifth step allowing for filing suit in federal court. Each step has a deadline attached to it that must be adhered to or one loses their right to appeal.

Tower MSA Partners has a complete solution to Medicare conditional payment resolution in liability cases, which includes investigation of conditional payments and properly disputing or appealing conditional payment charges determined to be unrelated to the injury. For further consultation on Medicare conditional payment best practices in liability settlements, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or daniel.anders@towermsa.com

2019 MSP Compliance issues

Medicare Secondary Payer policies and processes are always in flux, whether CMS tweaks what is included or excluded in the MSA or introduces a new contractor who brings their own take on MSA reviews or Medicare conditional payment recovery. Below we take a look at changes in the past 12 months to MSAs and conditional payments. We also explain Tower’s advocacy initiatives and highlight key benchmarks for MSA approvals over the past year.

Workers’ Compensation Medicare Set-Asides

The big news in the WCMSA world was the introduction of a new WCMSA review contractor, Capitol Bridge, in March 2018. Unlike with prior review contractor changes, turnaround times for MSA review only increased slightly and have generally remained within the 20 business days required under the CMS contract.

Although CMS advised that the contractor change would not involve any policy changes, there were changes to the allocation of care. First, CMS began to include four urine drug screens (UDS) each year when a Schedule II substance, such as Norco, is allocated in the MSA. This applies even when there was no past history of such screens or there was a past history but UDS occurred less frequently (Note, recent CMS MSA approvals reveal CMS may have rescinded this policy). Second, CMS expanded the diagnoses for Lyrica use, Medicare coverage and allocation in the MSA. Since Lyrica is only available in brand-name, this has led to some significant increases to MSA allocations.

Challenging CMS

Tower leaves no stone unturned when identifying opportunities to reduce the MSA during the CMS review and approval process. We have challenged CMS about its inclusion of unwarranted UDS and its expansion of Lyrica coverage in the MSA. In 2018 Tower had a 71% success rate in obtaining partial or full reductions to CMS MSA counter-highers. In one case, Tower successfully challenged the inclusion of a revision total shoulder replacement given the life expectancy, resulting in a reduction of $31,801.

Tower also doesn’t let CMS go on minor, yet unwarranted, MSA increases. In another example, we disputed the increase in post-op PT visits from 24 to 36. CMS agreed and reduced PT visits back down to 24.

Our ability to challenge CMS often comes from having clear and concise medical documentation to support our MSA proposal. Tower’s Physician Follow-Up service obtains statements from treating physicians and other medical providers that document last dates of service, discontinued and ongoing medications and otherwise clarify expectations for future injury-related medical care. Tower provides this service free to our clients for the purpose of expediting the CMS MSA approval process, identifying and implementing MSA cost reductions and avoiding MSA counter-highers.

Medicare Conditional Payments

Performant Recovery became the new Commercial Repayment Center (CRC) contractor in February 2018. The CRC is primarily charged with seeking reimbursement for conditional payments from employers and insurers stemming from liability, workers’ compensation and no-fault claims where ongoing responsibility for medicals has been accepted.

In general, having Performant as the CRC contractor reduced turnaround times to obtain Medicare conditional payment information. While we applaud the quick turnaround time on conditional payment data, the dispute and appeal process has been inconsistent, with some cases falling within a 60-day timeframe, while receiving a determination from the CRC took many months in other cases.

We understand that Performant inherited a backlog of cases from the prior contractor a year ago. However, we would expect that backlog to be resolved by now and that turnaround times for cases being handled would have stabilized.

Tower as an Industry Leader

Tower’s CEO Rita Wilson served as the 2018 president of NAMSAP where she led implementation efforts for a number of strategic initiatives to advance its mission to advocate, collaborate and educate within the MSP industry. Key accomplishments included the release of the industry’s most comprehensive course for MSCC pre-certification, discounted subscription to ODG, the nation’s top resource for clinical guidelines to improve MSA accuracy drive toward evidence-based medicine, and, most importantly, a significant increase in NAMSAP’s influence on CMS’s WCMSA review policies. Here are a few highlights:

• Submitted a formal proposal to CMS with recommendations for use of evidence-based guidelines in its WCMSA review process for MSAs that allocate for long-term use of opioids. CMS has agreed to work with NAMSAP’s evidence-based medicine leadership as it considers changes.
• Submitted recommendations for CMS Liability MSA review process and was invited to engage. CMS in further dialogue.
• Initiated a quarterly conference call with CMS to continue discussion of MSP issues. The first call was Dec. 18, 2018. While CMS’s review of some items continues, NAMSAP was successful in obtaining clarity regarding the inclusion of Lyrica in the MSA, and in aligning the use of urine drug screens (UDS) with current prescribing practices when Class II narcotics are included in the MSA.
• Secured commitments from CMS and its contractors to present at the 2019 annual meeting

The 2019 Board of Directors, which includes me as treasurer and a member of NAMSAP’s Executive Committee, will continue its collaboration with CMS in an effort to further influence CMS’s behavior and to improve the accuracy of the MSA work product.

Tower and You

As we pressed forward to influence CMS and support our industry, Tower also continued its mission to achieve better outcomes for our clients through an improved technology infrastructure that supports better measurement of the key metrics that drive our business.   While WC agrees that pharmacy is a key cost driver in the MSA, few are measuring the inclusion, cost and CMS approval rating for drugs, specifically opioids, in the MSA. Tower has benchmarked these metrics for more than 3 years, and in early 2019, will release a new set of performance reports to our clients to provide benchmarked performance data for these key performance metrics.

As noted many times by our CEO, “You cannot manage/improve what you do not measure” During the past year, we saw:

• CMS Approved MSAs with NO prescription drugs – 64%
• CMS Approved MSAs with NO opioids – 90%
• CMS Full Approval Rating – 77%
• CMS Re-Review Success Rate – 73%
• MSA Cost Savings from Clinical Intervention 61.4%

Employers and carriers have to dissect mega volumes of claims and vendor data – then try to aggregate it into a simple, usable format to gauge their programs’ success. Want to find out your MSA numbers? We will help you understand the metrics you need to optimize your MSP compliance and MSA programs – call Dan Anders at (888) 331-4941.