On 10/1/2018, the Centers for Medicare and Medicaid Services (CMS) released updates to the Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide, the Medicare Secondary Payer Recovery Portal (MSPRP) User Guide and the MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting NGHP User Guide. These updates to the reference guide and user guides are all fairly minor, having minimal to moderate impact on the associated CMS MSP processes. A summary of the updates is provided below.

WCMSA Reference Guide

The WCMSA Reference Guide provides for most CMS policies pertaining to the review and approval of MSAs. Version 2.8 of the guide provides as follows:

HICN Replaced with MBI: As CMS explains:

As required by Section 501 of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act (MACRA) of 2015, CMS must discontinue all Social Security Number (SSN)-based Medicare identifiers and distribute a new 11-byte Medicare Beneficiary Identifier (MBI)-based card to each Medicare beneficiary by April 2019. All fields formerly labeled as “HICN” have been relabeled as “Medicare ID” and can accept either a HICN or the new MBI.

Updated CDC Life Expectancy Table Link: While with this Reference Guide update CMS is not presently changing the CDC Life Expectancy Table used for calculating life expectancy in the MSA, CMS is updating the link which was outdated.

Revised Tables Pertaining to Verifying Jurisdiction and Calculation Method: In states where the fee schedule provides for regional adjustments, for example, New York, the Reference Guide lists criteria for determining the correct fee schedule rates to use in the MSA. CMS added an additional level of criteria and revised the table (9-1) that provides what is called an “Order of Precedence” in determining the zip code to utilize for pricing. CMS also added a table (9-2) clarifying pricing rules when claims are filed with U.S. Department of Labor Office of Workers’ Compensation Programs and states where no fee schedule is applicable.

MSPRP User Guide

The MSPRP is a web-based portal providing online access for attorneys, Medicare beneficiaries, insurers and authorized representatives to Medicare conditional payment information, the ability to dispute and/or appeal conditional payments and initiate the Demand Letter process among other tasks. Version 4.3 of the User Guide includes the addition of two new columns to the Case Results page providing for Case Status and Contractor, news fields which provide more relevant and updated information for claims awaiting response from the BCRC and three new warning pages to ensure information related to submitting redetermination, compromise or waiver requests is complete.

A notable improvement comes with the submission of Letters of Authority or Proofs of Representation allowing for third-party representatives, such as Tower MSA Partners, to act on behalf of insurers and Medicare beneficiaries. The process has been once a Proof of Representation or Letter of Authority is submitted through the portal the submitter would be required to wait a few days for the authorization to be authenticated. Updates to the MSPRP now allow authorizations to be uploaded to the portal with immediate authentication. As a result, the cuts down on the time to obtain Medicare conditional payment information.

Section 111 NGHP User Guide

CMS released Version 5.4 of the NGHP User Guide, which provides both policy and technical updates for the Section 111 Mandatory Insurer Reporting process. Notable updates are as follows:

• As a result of Angel Pagan replacing Jeremy Farquhar as the EDI Department Director, new contact information is provided.
• To ensure updates are applied to recovery cases appropriately, RREs are asked to submit the policy number uniformly with a consistent format. When sending updates, enter the policy number exactly as it was entered on the original submission, whether zeros or a full policy number (Section 6.6.5). 
• The excluded and no-fault excluded ICD-10 diagnosis codes have been updated for 2019 (Appendix I and Appendix J)

Practical Implications

We do not anticipate the changes to the WCMSA Reference Guide to have any impact on either increasing or decreasing allocations on CMS-approved MSAs. As noted above, the updates to the MSPRP authorization authentication process will improve the turnaround time for obtaining conditional payment information. Finally, the Section 111 User Guide updates are all minor in nature and have minimal impact on the reporting processes.

If you have any questions regarding these updates, please contact Dan Anders at (888) 331-4942 or Daniel.anders@towermsa.com.

Tower MSA Partners brings you WCI-TV, the televised coverage of the WCI Conference (Aug. 19-22). Be sure to tune into WCI-TV in the conference hall or your hotel or while shuttling back and forth for insights on the topic of Knocking Down Barriers to Settlement of Claims. #WCI2018

Read it here

Since April 2018 the Centers for Medicare and Medicaid Services (CMS) has been issuing new Medicare identification numbers to some 60 million active Medicare beneficiaries. Pursuant to the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015, a Medicare Beneficiary Identifier (MBI) is replacing the Social Security Number (SSN) based Health Insurance Claim Number (HICN) on all Medicare cards issued to beneficiaries. An MBI is a unique, randomly generated alphanumeric identifier which will no longer include any portion of a person’s SSN. The primary reason the identifiers are being replaced is to limit identity theft associated with use of SSNs in Medicare IDs.

The process of issuing new Medicare cards with MBIs is to be completed by April 2019. Medicare beneficiaries and medical providers requesting payment by Medicare can continue to use either the HICN or MBI through December 31, 2019.   However, as of January 1, 2020, Medicare beneficiaries and medical providers must use the MBI to access Medicare-covered medical care and when requesting payment by Medicare for such care.

Limited Impact on MSP Compliance

While the statute requires CMS remove the SSN from Medicare IDs, it leaves an exemption allowing CMS to continue to utilize SSNs for purpose of Medicare Secondary Payer data exchanges and processes. Accordingly, for purposes of Section 111 Mandatory Insurer Reporting, Responsible Reporting Entities (RREs), may continue to use SSNs, HICNs or MBIs post January 1, 2020. However, when querying a claimant for Medicare beneficiary status or otherwise updating a report, if an MBI has been issued to the beneficiary, then the response file from CMS will be the MBI, not the HICN.

In regard to communication with the Benefits Coordination and Recovery Center (BCRC) and Commercial Repayment Center (CRC), SSNs, HICNs or MBIs may be utilized to ID the beneficiary. Correspondence from these entities, such as Conditional Payment Letters and Demands, will include either an HICN or MBI, depending upon the beneficiary ID which was most recently reported.

As for communication with the Workers Compensation Review Contractor pertaining to MSA submissions, SSNs, HICNs or MBIs may be utilized. Correspondence from the WCRC/CMS will include whatever beneficiary ID was submitted with the MSA proposal.

From a practical standpoint, what employers, carriers and other payers need to be aware of is they will increasingly be seeing these MBIs from claimants and responses from CMS and CMS contractors.

Tower MSA Partners will continue to monitor the transition from HICNs to MBIs and its impact on the MSP process. Any relevant updates will be provided with a breakdown of the implications to your practices and processes. If you have any questions please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or Daniel.anders@towermsa.com.

A Philadelphia personal injury firm and its principal recently entered into a settlement agreement with the U.S. Attorney for the Eastern District of Pennsylvania to pay a lump sum of $28,000 for repayment of Medicare conditional payments. The June 18, 2018 press release from the U.S. Attorney’s Office explains that the law firm, Rosenbaum & Associates, and its principal, Jeffrey Rosenbaum, Esq., allegedly failed to reimburse this amount to Medicare stemming from nine settlements handled by the firm.

According to the release, Rosenbaum agreed to enter into a settlement with the federal government requiring not only reimbursement of the conditional payments but also 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.

Rosenbaum also acknowledged as part of the agreement that “any failure to submit timely repayment of Medicare secondary payer debt may result in liability for the wrongful retention of a government overpayment under the False Claims Act.”

Practical Implications

This is another shot across the bow to plaintiffs’ attorneys warning them of their obligation under the Medicare Secondary Payer Act to ensure Medicare is appropriately reimbursed out of the settlement funds. Medicare regulations are clear in stating under 42 CFR 411.24 (g): “CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.”

In regard to implications of this decision going forward, U.S. Attorney William M. McSwain said, “When an attorney fails to reimburse Medicare, the United States can recover from the attorney—even if the attorney already transmitted the proceeds to the client. Congress enacted these rules to ensure timely repayment from responsible parties, and we intend to hold attorneys accountable for failing to make good on their obligations.”

The provisions of the settlement agreement act as a roadmap for plaintiffs’ attorneys in ensuring Medicare conditional payments are properly resolved as part of settlement. 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.

On March 16, 2018, Capitol Bridge took over responsibility from Provider Resources as the Centers for Medicare and Medicaid Services’ (CMS) Workers Compensation Review Contractor (WCRC) (See New CMS MSA Review Contractor: Different Name, Same Policy and Procedures). The WCRC is responsible for reviewing all Workers’ Compensation Medicare Set-Asides (WCMSAs) submitted to CMS by providing a recommendation as to whether the WCMSA should be approved as proposed or increased or decreased. CMS then issues a determination letter based upon that recommendation.

We are now 45 days into the new WCRC contractor and have sufficient results from our MSA submissions to report on what has changed and what has remained the same:

Review Time: The prior WCRC was on average completing its review with a determination letter issued within 14 to 21 days from the date the WCMSA proposal was submitted. We were warned on March 7, 2018, CMS webinar introducing the new WCRC that the contractor would be using the full 20 business days allowed for review under the contract with CMS. Indeed, CMS was spot-on, as the time from submission of the WCMSA proposal to receipt of the determination letter now stands at approximately 28 to 30 days.

Development Letters: Development Letters, requests for additional documentation or information, are being issued between 21 and 28 days post-MSA submission, compared to nine and 15 days with the prior contractor. This is consistent with the overall review time of up to 30 days.

While the time for Development Letter issuance has increased, we have only found a slight uptick in the amount of Development Letters being issued. And even this uptick has been caused by Development Letters issued in error, i.e. request for documentation that has already been provided.

Review Policies and Procedures: On the March 7, 2018 webinar CMS advised that there would be no changes to their WCMSA review guidelines with the introduction of the new contractor.

The new WCRC has mostly followed the review guidelines, however, we have found an increase in pricing and frequency errors and the inappropriate addition of medical care on some WCMSA determinations.

Tower MSA can readily identify these errors through its Advanced CMS MSA Reconciliation System. Within 48 hours of receipt of a CMS MSA counter-higher, the following process occurs:

• A line item comparison is systematically made between the Tower MSA proposed WCMSA and the CMS WCMSA determination to detect changes in pricing, frequency and the addition or modification of medical treatment and medications
• Tower MSA’s clinical and legal team reviews the reconciliation to determine any reasonable basis for submission of a re-review to CMS.
• If appropriate, re-review prepared and uploaded to CMS.

Client advised of CMS’s response and whether a re-review has been submitted.

The results and value of this process can be shown in two successful re-reviews from the past month:

• WCMSA counter-higher as a result of a change in pricing of urine drug screens increased the MSA by $4,245. Tower MSA’s Reconciliation System identified the error in pricing and a re-review request letter was submitted.CMS responded by correcting its error resulting in a WCMSA amount approved as submitted.
• WCMSA counter-higher as a result of CMS changing a shoulder arthroscopy to a total shoulder arthroplasty, a $23,901 increase to the MSA. Again, Tower MSA’s Reconciliation System, along with the legal and compliance team, identified CMS’s error and a re-review request was promptly submitted. CMS admitted that indeed while a total shoulder arthroplasty had been discussed in the records, the most recent recommendation from the treating physician was for an arthroscopy. The error was corrected and the WCMSA amount was approved as submitted.

In terms of time to complete a re-review, the new WCRC is taking between 16 and 21 days compared to the prior contractor which took between two and six days. The new WCRC should be credited with correcting errors when brought to their attention.

We also applaud the new WCRC for using the most recent state fee schedules in their review of the proposed WCMSA. While CMS guidelines require the most recent fee schedules to be used in the WCMSA, the prior contractor was often using outdated fee schedules, which were up to seven years out-of-date. The result was sometimes inappropriate counter-higher our counter-lower determinations from CMS.

Practical Implications

You can rest assured that if the new WCRC makes an error it will be identified by Tower MSA and a prompt request for correction made. In regard to these recent errors, we expect some of this is to be expected with a new contractor. We have already seen corrections made in pricing and frequency of allocated treatment since the initial WCMSA determinations received from the new contractor.

While Tower MSA will address any identified errors, we cannot change the WCMSA review time. As such, you do need to take into account the now 30-day review time in your settlement planning (and potentially an additional 21 days if a re-review is necessary).

All-in-all, the transition to the new contractor has gone smoothly, which is a credit to CMS and Capitol Bridge.

If you have any questions, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or Daniel.anders@towermsa.com.