Category: Blog

Humana’s Brian Bargender Gives Tips on How to Work with Medicare Part C & D Plans

May 12, 2022

Chalk board with Medicare Part C & D

Attendees of Tower’s Premier Webinar on April 20 received sound advice on how to work with Medicare Part C (Advantage) and D (Drug Benefits) plans. Our guest presenter was Brian Bargender, Consultant, Subrogation and Third-Party Liability with Humana, a nationally recognized expert on these plans.

Bargender noted that these plans have the same rights and responsibilities as original Medicare under the Medicare Secondary Payer (MSP) Act. This means that Part C and D plans must avoid payment for treatment covered by primary payers, such as workers’ compensation or liability. Part C plans take this commitment seriously as they want to prove they are more efficient than original Medicare.

The PAID Act gave primary payers visibility into Medicare beneficiary enrollment status in Parts C and D. Previously, they could only see that an individual was enrolled in Medicare. It was problematic to identify a beneficiary’s plan and resolve conditional payments. The growing popularity of Medicare Advantage plans was making the process more time consuming. Approximately 46% of Medicare beneficiaries use Part C and 75% of the ones on original Medicare have Part D.

Bargender explained the plans’ approach to MSP compliance and touched on Private Cause of Action and Double Damages in the MSP Act. Medicare Advantage plans can obtain double damages from primary payers that refuse to reimburse conditional payments. And primary payers remain liable for repayment until plans are repaid, even if they have already paid the injured worker their settlement.

To make it easier to work with Part C and D plans in light of the PAID Act, Bargender offered these insights and advice:

  • While Section 111 reporting gives primary payers “an” address, it’s not necessarily the address the plan would have chosen. As such, further investigation into the appropriate plan contact may be necessary.
  • Medicare Advantage plans get Section 111 data, but not always in time to act on it. They use it as a back sweep to see if they missed anything.
  • Contact the plans before trying their recovery vendors; they have multiple vendors.
  • Ask for the subrogation or legal departments. Customer service reps at C and D plans are not well versed in Medicare Set-Asides.
  • It’s hard for Medicare Advantage and drug plans to predict and staff for call volume; prepare for delays.
  • The plan may not have the file when payers contact them.
  • It’s good for primary payers to notify the plan(s) when they accept responsibility for the claim, and certainly when they prepare for settlement. The Centers for Medicare and Medicaid Services (CMS) notifies plans later in the process.
  • To minimize calls and delays, provide plans the same information given to CMS for Ongoing Responsibility for Medical (ORM) or Total Payment Obligation to Claimant (TPOC) reporting along with the MSA diagnosis and prescription drug details if they are available.
  • At minimum, plans need this data:
    • Medicare Beneficiary Identifier
    • Name
    • Date of birth
    • Loss/Injury Date
  • Part C and D plans cannot correct errors in the file; these must be done through Section 111 reporting or through the Benefits Coordination and Recovery Center (BCRC).
  • These plans do not track how funds are used or exhausted. They need a letter from CMS to the MSA administrator or beneficiary that says funds were properly exhausted before they can start paying for injury care.

Tower has found Bargender and Humana’s subrogation team to be very helpful. They promptly identify specific reimbursement claim information when the claimant is enrolled in a Humana Medicare Advantage plan. Further, they are open to understanding the liability issues and basis for settlement; this is something not typically found with the Medicare conditional payment recovery contractors.

As Bargender stressed, “proactive beats reactive,” when it comes to resolution of these Part C and D claims. Primary payers must be proactive in using PAID Act data to identify whether a Medicare eligible claimant is enrolled in a MA plan, and, if so, investigate whether the plan is seeking reimbursement for payments it made on the claim.

For our Section 111 reporting clients, Tower has the PAID Act data readily available. Whether you are a reporting or non-reporting client, we can help you contact the Part C and/or D plan to investigate and resolve conditional payments at the time of settlement.

If you have questions or want a link to the recorded webinar, please contact Dan Anders at Daniel.anders@towermsa.com

Related articles

The PAID Act: Implementation and Implications for Claims Handling

Tower MSA Partners Receives 2022 SOC 2 Type II Attestation

May 3, 2022

logo for AICPA. which conducts the SOC 2 Type II Audit

Independent Audit Verifies Tower MSA Partners’ Internal Controls and Processes

Delray Beach, FL – Tower MSA Partners, a Medicare Secondary Payer compliance services company, today announced that it has completed its annual SOC 2 Type II audit, performed by KirkpatrickPrice. This attestation provides evidence that Tower has a strong commitment to security and to delivering high-quality services to its clients by demonstrating that they have the necessary internal controls and processes in place.

A SOC 2 audit provides an independent, third-party validation that a service organization’s information security practices meet industry standards stipulated by the AICPA. During the audit, a service organization’s non-financial reporting controls as they relate to security, availability, processing integrity, confidentiality, and privacy of a system are reviewed, examined and reported on. The SOC 2 report delivered by KirkpatrickPrice verifies the suitability of the design and operating effectiveness of Tower MSA Partners’s controls to consistently meet the standards for these criteria throughout the full audit period.

“The SOC 2 audit is based on the Trust Services Criteria,” said Joseph Kirkpatrick, President of KirkpatrickPrice. “Tower delivers trust-based services to their clients, and by communicating the results of this audit, their clients can be assured of their reliance on Tower’s controls.”

“It’s an honor to again earn an unqualified 2022 SOC 2 Type II outcome” said Wilson. “It’s an attestation that Tower’s systems, policies and procedures meet the trust services criteria of security, availability, processing integrity, confidentiality, and privacy.”

What does this mean for you?

  1. Peace of mind.
    If you partner with Tower, you can be assured that

    • Our human processes and our highly automated system– have been validated by third-party auditors after a stringent analysis.
    • Your data is transferred safely, used appropriately, stored securely, and is accessible for the required amount of time.
    • You can partner with a best-in-class MSP services provider and superior technology.
  2. Cybersecurity assurance. Auditors recognized Tower’s commitment to keep up with cyber threats, patching, monitoring methods and cybersecurity technology. They saw that we monitor all internal systems for patching cadence and antivirus/antimalware activity, we regularly train staff on how to avoid the latest scams, and we execute multi-factor authentication and password changes to prevent breaches. In addition, we partner with reliable and well-respected cloud storage, monitoring, and security companies.

While the complete report is confidential and proprietary, a redacted synopsis of the report, SOC 3, can be downloaded here. I’m happy to answer questions and discuss the value of partnering with Tower for your MSP compliance and MSA needs. Please contact me at Rita.Wilson@TowerMSA.com to arrange for a conversation.

Highlighting worker fatalities: Workers Memorial Day

April 28, 2022

Banner for Worker Fatalities for Memorial day

As an industry, we must all work to eliminate worker fatalities through an ongoing commitment to safety. April 28 is Worker Memorial Day, a time to memorialize those who died on the job.

Every year, April 28 is earmarked as Workers Memorial Day, a global day to remember and memorialize workers who lost their lives on the job. The day has several purposes:  Through a series of national and local events, it offers a way to call attention to the number of worker fatalities, to put a face on the workers who died, and to highlight the impact these deaths have on their families, co-workers, and communities. The day also sheds light on the fact that most workplace incidents are preventable and serves as a reminder for employers and workers alike to recommit to the important work of building safer workplaces.

April 28 is a fitting day for this event because it is also the day OSHA was established in 1971. Under the Occupational Safety and Health Act of 1970, “employers are responsible for providing safe and healthful workplaces for their workers. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.” OSHA’s mission encompasses 130 million workers, employed at more than 8 million worksites around the nation.

Of the 2022 Memorial, OSHA says:

“This year, we also recognize that, more than a year into the pandemic, every day essential workers, many of whom are people of color and immigrants, have put their lives on the line during the COVID-19 pandemic. Many were sickened or died as a result of just going to work – for simply doing what they had to do to support their families. They were healthcare workers, grocery workers, meatpackers, nurses, delivery drivers, farmworkers, law enforcement officers, teachers, and sanitation workers. We remember and honor every worker who has lost their life to largely preventable fatal injuries and illnesses, and we commit ourselves to fighting to make sure that others do not suffer the same terrible fate.”

The impact of OSHA on worker fatalities can be seen in the statistics:  Worker deaths in America dropped from about 38 worker deaths a day or 13,900+ per year in 1970 to 15 a day or 5,300+ per year in 2019.

The most recent Census of Fatal Occupational Injuries was issued by the Bureau of Labor Statistics in December 2021 and noted a significant decrease in worker fatalities. The report noted that there were 4,764 fatal work injuries recorded in the United States in 2020, a 10.7-percent decrease from 5,333 in 2019 and the lowest annual number since 2013. The fatal work injury rate was 3.4 fatalities per 100,000 full-time equivalent (FTE) workers, down from 3.5 per 100,000 FTE in 2019. A worker died every 111 minutes from a work-related injury in 2020.

But the number of fatalities for 2020 needs to be put in the context of the pandemic, when many workplaces were shuttered for varying lengths of time. Some safety and health experts warn that we are likely to see an increase in the numbers going forward: Serious Work Injuries and Fatalities Spike as Labor Shortages Exacerbate the Problem

“ Fewer workers died or suffered severe injuries in the workplace in 2020.

However, the rate of serious injuries and fatalities rose from 366 per 100,000 workers in 2019 to 429 per 100,000 workers in 2020, according to risk management software firm ISN.

The rate was 406 per 100,000 in 2018.

The problem could worsen as companies around the U.S. contend with a shortage of labor, which can translate into longer hours on the job by less-experienced workers, as well as a greater reliance on outside contractors.”

Working to reduce worker injuries and deaths is the right thing to do. It’s also usually the least costly thing to do and the smart thing for employers to do. Workers are concerned about workplace safety and appreciate employers who demonstrate a commitment. A recent survey showed that:

Almost all (97%) respondents said feeling safe is a major factor in choosing where to work. Asked how they would respond if their employer failed to communicate effectively about an emergency or other potentially dangerous event, 44% said they would feel unsafe and 58% said they would reconsider working there or seek employment elsewhere.

For more information on Workers Memorial Day:

Previously on Tower MSA Partners

Premier Webinar: Medicare Advantage Plan Reimbursement – What Now?

April 7, 2022

In December 2021, the Centers for Medicare and Medicaid Services (CMS) started providing access to data showing a claimant’s enrollment in Medicare Part C and D plans. Now payers are wondering how to best interact with Medicare Advantage (MA) plans and prescription drug plans. What are their reimbursement rights? How does this work with Section 111 reporting?

Tower is pleased to feature a guest presentation by Brian Bargender, Management Consultant, Subrogation and Other Payer Liability for Humana on Wednesday, April 20 at 2:00 PM ET.  Brian is arguably the industry’s foremost expert on Part C and D plan subrogation. Humana is the second-largest Medicare Advantage Plan and Part D plan in the country and has been the leading advocate for reimbursement under the MSP Act.

Here’s just some of what you will learn:

  • Role of Part C and D plans in providing services to Medicare beneficiaries.
  • Reimbursement rights of Part C and D plans under the Medicare Secondary Payer (MSP) Act.
  • Interplay between CMS and Part C and D plans in use of Section 111 Mandatory Insurer Reporting data.
  • Part C and D plans role in Workers’ Compensation MSAs.
  • Best practices for working with Part C and D plans to resolve reimbursement claims.

A Q&A session will follow the presentation, and you can provide questions at the time you register. Please click the link below and register today!

REGISTER HERE

CMS to Hold Webinar on “Go Paperless” Feature in MSPRP

March 28, 2022

Red Medicare button on a keyboard to illustrate Medicare conditional payment.

On April 13, 2022, at 1:00 pm ET, the Centers for Medicare and Medicaid Services (CMS) will host a webinar on the “Go Paperless” option in the Medicare Secondary Payer Recovery Portal.  The selection of this option will provide for more expeditious receipt of correspondence from the CMS Medicare conditional payment recovery contractors.  Per the announcement:

The Centers for Medicare & Medicaid Services (CMS) will be hosting an overview of the new “Go Paperless” feature available in the Medicare Secondary Payer Recovery Portal (MSPRP). Insurers and authorized agents may now choose to opt-in to paperless functionality. Once registered, users will be able to quickly and easily access all recovery correspondence including demand letters, using the MSPRP. Opting to “Go Paperless” in combination with the ability to submit correspondence through the MSPRP and the multiple available options for electronic payment will allow your organization to not only reduce the amount of paper that needs to be physically handled, associated workload and environmental impacts, but also eliminate concerns about delays that can arise when information is sent through the mail.

The webinar will feature opening remarks and a presentation, followed by a question-and-answer session.

Note, there is no pre-registration, instead, just follow the provided link shortly before the webinar start time.

By way of background, in January CMS released an updated Section 111 User Guide, Version 6.7, which in Chapter V provides as follows:

When there is an active Medicare Secondary Payer Recovery Portal (MSPRP) account for the insurer/recovery agent TIN, Section 111 submitters may set Go Paperless options (i.e., choose to receive letters electronically or by mail) for the insurer and recovery agent address using the following new TIN Reference File fields (Appendix B):

  • TIN/Office Code Paperless Indicator (Field 23)
  • Recovery Agent Paperless Indicator (Field 24)
  • Recovery Agent TIN (Field 25

Note: There are also five new fields (Fields 48-52) returned for these entries on the TIN
Reference Response File (Appendix D).

Along with the updates to the Section 111 User Guide, CMS also updated the Medicare Secondary Payer Recovery Portal (MSPRP) User Manual, Version 5.3, to incorporate functionality around the Go Paperless option.

Key Takeaways

We are pleased to see CMS provide this Go Paperless option for Responsible Reporting Entities (RREs) and their authorized agents. It is environmentally friendly and will allow time-sensitive correspondence i.e., Conditional Payment Notice with a 30-day due date, to be received and acted upon sooner.

If you are interested in taking advantage of the Go Paperless option or have other questions we encourage you to attend the CMS webinar.  Also, you can always contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or daniel.anders@towermsa.com with any questions.

CMS Clarifies Policy on Non-Submit MSAs in Updated Reference Guide

March 22, 2022

book marked by sticky notes illustrating changes Section 111 reporting on ORM

The January 2022 addition of Section 4.3 to the CMS WCMSA Reference Guide that discussed the agency’s treatment of non-submit Medicare Set-Asides caused quite a stir throughout the MSA industry and raised many questions for those who use non-submit MSAs in workers’ comp settlements.  A February CMS webinar addressed some of those questions and we now have an update (Version 3.6) to the CMS WCMSA Reference Guide that modifies and clarifies this section.

Revisions to Section 4.3

Below is a breakdown of the revisions to Section 4.3 along with comments.

More general language around non-submit MSAs

The original language called out certain MSA products as indemnifying:

“A number of industry products exist with the intent of indemnifying insurance carriers and CMS beneficiaries against future recovery for conditional payments made by CMS for settled injuries.”

The new language is more general:

“A number of industry products exist for the purpose of complying with the Medicare Secondary Payer regulations without participation in the voluntary WCMSA review process set forth in this reference guide.”

Comment:  The original language took aim at MSA indemnification agreements where the new language is broader and includes any product that addresses future medicals. It also reiterates that the CMS MSA review process is voluntary. This was likely in response to people who said that CMS’s original policy changed the MSA review process from voluntary to mandatory.

 ‘May’ instead of ‘Will’ Deny

 CMS’s original policy said that it “will” deny payment of medical services up to the total settlement amount whereas the revised policy indicates CMS “may at its sole discretion” deny payment.

Comment:  It appears that CMS is giving itself wiggle room depending on the circumstances of an individual case.  Also, as is further explained below, CMS has given itself the option to accept less than the entire settlement amount as sufficient to protect its interests.

Total Settlement Definition

The original Section 4.3 defined total settlement as “total settlement less procurement costs.”  This was now revised to define total settlement “as defined in Section 10.5.3 of this reference guide, less procurement costs and paid conditional payments.”

Comment:  Section 10.5.3 is CMS’s longtime definition of “total settlement.” It makes sense that the definition of total settlement in the non-submit context should align. CMS also acknowledges that besides procurement costs, payment of conditional payments from the settlement amount should also be deducted from the amount of the settlement available to pay for future medical.

Post-MSA exhaustion review

When released in January, Section 4.3 provided no option for CMS to acknowledge the non-submit MSA as sufficient. The updated policy now says, “CMS will ignore the non-submit MSA and use the total settlement amount (minus procurement costs and paid conditional payments) as the amount available to pay future medicals “unless it is shown, at the time of exhaustion of the MSA funds, that both the initial funding of the MSA was sufficient, and utilization of MSA funds was appropriate.”

Comment:  It will be the Medicare beneficiary’s responsibility, or someone working on their behalf, to demonstrate that the MSA was sufficient at the time of settlement and that the MSA funds were spent appropriately.  We can assume that CMS will use the standards found in the WCMSA Reference Guide and its MSA Self-Administration Guide to make its determination. If CMS finds either that the MSA was insufficiently funded or inappropriately utilized, does the Medicare beneficiary have a right to an appeal? Medicare beneficiaries have a right to appeal a denial of payment for medical care. Presumably, that right extends to the context of a non-submit MSA, but it remains unclear how this would play out in practice, and CMS did not address it here.

Policy start date:  Per CMS, Section 4.3, “shall apply to all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022; however, flags in the Common Working File for notifications received prior to that date will be set to ensure Medicare
does not make payment during the spend-down period.”

Comment:  Before the January date, there was no obligation to notify CMS of a settlement that includes the use of a non-CMS-approved MSA product (Yes, there is a Section 111 reporting responsibility, but that does not include notification of a non-submit MSA). Is there an obligation now? Nothing in Section 4.3 affirmatively states such an obligation exists and there is no statutory basis that provides for such notification.

Under threshold MSAs:  CMS says “CMS does not intend for this policy to affect any settlement that would not otherwise meet review thresholds. This comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement; however, CMS does not expect notification or submission where thresholds are not met.”

Comment:  Again, by saying it does not expect notification where thresholds are not met, CMS implies that they do expect notification when a non-submit MSA is used and thresholds are met. Why would CMS expect no notification on an under-threshold MSA? I suspect there are two reasons:

  • If a claimant is a Medicare beneficiary with a settlement of $25,000 or less, CMS expects that the MSA is a low-dollar amount and not worth the time it takes to coordinate its benefits.
  • If a claimant is not a Medicare beneficiary but has a reasonable expectation of Medicare eligibility within 30 months and the settlement is $250,000 or less, CMS cannot track the claimant as they are not yet a Medicare beneficiary.

Summary comments on Section 4.3 revisions

CMS should be credited for quickly addressing several of the questions and concerns that arose from the original Section 4.3 language. The revised section backs off the seeming implication that the mere use of a non-submit MSA represents a potential cost shift to Medicare. With that said, CMS reiterated that if the non-submit MSA exhausts, then it must be demonstrated that the MSA was sufficiently allocated at the time of settlement and the funds properly expended. As we do not know how this policy will play out in practice, the non-submit MSA route continues to present a notable risk to the claimant Medicare beneficiary.

Other CMS Updates to WCMSA Reference Guide

Beyond Section 4.3, CMS also made updates to other sections of the guide:

Section 9.4.1.1 Most Frequent Reasons for Development Requests

CMS added language to this section around documentation required for disputed cases, in other words, $0 MSAs for denied claims. CMS stated that medical records are required even when the parties are in dispute. Further, draft or final settlement agreements and court rulings are required documentation if they exist.

Comment:  CMS has required the above for quite some time.  This is just putting the requirements into the reference guide.

Section 16.1 Re-Review

CMS added the following to its re-review criteria:

 “Should no change be made upon response to a re-review request (i.e., no error was identified), additional requests to re-review the same error will not be entertained. “

Comment:  Tower has on occasion gone back and forth with CMS on arguments to remove a certain treatment or medication from the MSA. This new statement implies that once CMS makes its decision regarding a particular item it will not entertain other arguments.

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

 

Cyber Concerns Rise in the Wake of Russia’s Invasion of Ukraine

March 11, 2022

threatening hooded figure with the word cyber security superimposed to illustrate post on best practices for cybersecurity

Cybercriminals love pandemics, natural disasters, and wars. Global distractions are good for their business.

Russia’s invasion of Ukraine elevates cyber security risks, which were already on the minds of global business leaders. So far, the incursion has delivered new distributed denial of service (DDoS) attacks and a novel malware, Hermetic Wiper.

While most attacks have targeted Ukraine’s government, infrastructure, and financial services, US companies need to be on guard against spillover and direct attacks. The US/British-owned insurance broker AON was attacked on February 25. Although no direct connection has been reported, this was one day after the invasion.

But business leaders around the world did not need a war to stir their anxieties about cyber-attacks. The Allianz Risk Barometer, which surveys over 2,650 risk management experts around the world, identified cyber risk as the number-one threat to global businesses for 2022.

That means companies worry more about potential data breaches, ransomware attacks, and major IT outages than supply chain disruptions, COVID-19, or natural disasters. The second highest-rated concern was a business interruption, which can result from a catastrophic cyber-attack.

Not being able to provide products and services on time or–at all–is a frightening prospect. Business interruptions can have long-lasting, and for some companies, fatal impacts.

Tower’s commitment to business continuity relies on our powerful cybersecurity system and exacting protocols. These include the installation of anti-malicious software and its updates, the use of multi-factor authentication (MFA), VPNs, and real-time, 24/7 monitoring to detect and mitigate cyber intrusions. In addition, our employees receive extensive cybersecurity training and understand how to do their part to prevent breaches. We invest considerable time, thought, effort, and money to secure our data and our clients’ data.

Because data transfer presents a vulnerability, we also have a Vendor Risk Assessment Process for all third parties that can access Tower’s data, networks, and servers. In a digital age, companies need to be as concerned about their partners’ cybersecurity practices as they are about their own.

Hopefully, the war in Ukraine will not provoke massive cyber-attacks, but now is the time to secure your perimeters. To help you tell if your organization is as cyber secure as it can be, here’s a checklist gleaned from our partner, Palo Alto Networks, and the Shields Up site from the US government’s Cybersecurity & Infrastructure Security Agency (CISA).

  • Implement multi-factor authentication on your accounts.
  • Lockdown your network. Disable all applications, ports, and protocols that are not essential to operations.
  • Ensure software is up to date
  • Reinforce employee training, especially regarding clicking on strange emails. According to CISA, 90% of ransomware attacks come through phishing
  • Renew your plan for managing an attack.
    • Walkthrough scenarios in table-top exercises.
    • Test back-up and recovery plans and continuity of operations in case a network is disabled.
    • Make sure the emergency contact information for your people and partners is updated and available.
    • Revisit your crisis communications plan.

Most cyber threats can be managed, but we must be proactive. If your IT professionals have been requesting funds to strengthen cyber security, take this time to analyze the proposed solutions. Invest while you can.

Our CEO Rita Wilson has a strong technology background and a keen interest in these issues. If you have questions or just want to discuss your cyber security concerns, contact her at rita.wilson@towermsa.com

Meantime, shields up!

CMS Webinar Delves Further into Non-Submit MSA Matters

February 26, 2022

Man confused on a Non Submit MSA

The Centers for Medicare and Medicaid Services recently hosted a webinar on Workers’ Compensation Medicare Set-Asides (WCMSAs). While the webinar covered several topics around MSA submissions, CMS policy toward non-submit and evidence-based MSAs was an attendance-driver, according to its presenter, John Jenkins, Health Insurance Specialist for the CMS Division of Medicare Secondary Payer Operations.

As Tower’s recent articles CMS: Non-Submit MSAs Potentially Shift Costs to Medicare and CMS Letter Confirms Non-Submit MSA Denial is Real noted, the addition of Section 4.3 to the WCMSA Reference Guide has raised many questions and led some payers to reconsider whether non-submit MSAs are the best option for them.

Here is a webinar summary with Tower’s comments on Mr. Jenkins’ statements pertaining to non-submit MSAs along with a breakdown of some of the other matters discussed.

Non-Submit MSAs

Mr. Jenkins explained that the addition of Section 4.3 on non-submit and evidence-based MSAs was in response to industry requests for CMS’s position on such products.

He said that Section 4.3 is consistent with prior policy announcements which advise that Medicare has a right of recovery up to the settlement amount when the MSA is not CMS-approved and is prematurely exhausted.

  • Tower comment:  As we indicated in our prior article on Section 4.3, we believed this would be CMS’s position.

Mr. Jenkins could not clear up the question about MSAs that do not meet the CMS WCMSA review thresholds, i.e., Medicare beneficiary and total settlement higher than $25,000.  First, he said CMS treats these as if they never existed, thus the total settlement would be considered available to pay for future medical. However, later he said that if CMS obtains the non-submit MSA amount, that amount may be used to determine the “marker” in their system (This marker determines whether Medicare will pay for a certain treatment). Ultimately, he indicated further policy guidance will be issued around under-threshold MSAs.

  • Tower comment:  The common working file is CMS’s system to coordinate benefits to Medicare beneficiaries so that Medicare does not pay when a primary payer is available to pay. CMS places the marker for certain diagnoses to enable it to deny payment for treatment related to those diagnoses codes.  CMS needs to clarify how under-threshold MSAs will be treated. If parties have included a clinically and/or legally reasonable and defensible MSA in the settlement or have acceptable reasons for not including one, CMS should limit the liability for future medicals to the MSA amount. Perhaps CMS will have a post-settlement review process but its details are not clear at this time.

Mr. Jenkins went on to indicate that if CMS receives the non-submit documentation, settlement, and MSA amount, then it will use this information to place a marker in the common working file to deny medical care until such time as the settlement is exhausted.

According to Mr. Jenkins, CMS expects that Medicare should never see an injury-related bill if the non-submit MSA is priced correctly. If the MSA prematurely exhausts, the Medicare beneficiary will have to provide reasons for its exhaustion. Then it would be up to CMS to determine if the allocation and spending of the MSA were appropriate, using the same process used to approve MSAs.

  • Tower Comment:  Mr. Jenkins said that they see many instances of CMS-approved MSA funds exhausting and expects the same from non-submit MSAs. Even the best cost projections for future medical care are, in the end, still predictions. Future medical inflation alone will increase costs in addition to changes in treatment and medications. Thus, while a majority of non-submit MSAs will appropriately cover future medical care, some non-submit MSAs–just like some CMS-approved MSAs–will exhaust.

Mr. Jenkins referenced conducting some type of review if non-submit MSA exhausts, similar to the current pre-settlement WCMSA review process. Naturally, this raises more questions.  First, who is completing the review? The current CMS WCMSA review contractor, CMS itself, or some other contractor? What criteria will be used as part of the review? What documentation must be submitted to support the MSA allocation as sufficient and the fund spending as appropriate? To verify adequate funding, the same documentation used at settlement (medical treatment records, prescription histories, and rated ages) would likely be required. We assume appropriate spending of the funds would be determined using healthcare bills and payment receipts.

Mr. Jenkins advised that if a structured MSA’s funds exhaust in any given year, CMS will not temporarily step in to pay for injury-related care as it does with a CMS-approved MSA.

  • Tower Comment:  This leaves anyone with a non-submit MSA annuity in a difficult position. They would need to use their personal funds to pay for medical until next annuity payment is received when they could theoretically reimburse themselves. Even if they can reimburse their medical bills from the annuity payment, CMS is not likely to agree that reimbursing interest payments that occurred from putting medical bills on a credit card is an appropriate use of these funds.

Mr. Jenkins was clear in stating that the MSA, whether CMS-approved or not, is an agreement solely between CMS and the Medicare beneficiary.

  • Tower Comment:  This indicates that CMS will not take any action against the employer or insurance carrier as they are not seen as a party to the agreement. That said, there remain repercussions to the payer. A Medicare beneficiary claimant may be reluctant to agree to a settlement with a non-submit MSA. Additionally, the workers’ compensation board, commission or other governing authority may be less likely to approve such a settlement.

Mr. Jenkins stated that a large number of CMS-approved MSAs exhaust early and that non-submit MSAs are even more likely to exhaust early.

  • Tower Comment:  The allegation that a large number of CMS-approved MSAs exhaust early is, thus far, unsupported by data from CMS.

As to whether Section 4.3 of the reference guide applies retrospectively or just prospectively, Mr. Jenkins said that while what was stated in this section has always been CMS policy, anything after 1/11/22 must meet this requirement.

  • Tower Comment:  We believe this statement is still unclear. Does this mean that CMS will only apply this policy to settlements that occur after 1/11/22 or does it apply to settlements that took place before 1/11/22 when MSA funds continued to be used after that date?

Finally, Mr. Jenkins advised that Section 111 reporting and WCMSAs are not connected. Therefore, the agency does not use the Section 111 Total Payment Obligation to the Claimant (TPOC) data to place a marker in the common working file.

  • Tower Comment:  While this has been our understanding, CMS’s statement that it does not use Section 111 reporting data to stop Medicare payment for post-settlement medical is significant. It means that unless the settling parties proactively advise CMS of a non-approved MSA, CMS will continue to pay for injury-related care because it is unaware that an MSA was funded.

While the webinar answered some questions around CMS’s approach to non-submit MSAs, many remain. We believe CMS needs to significantly increase its guidance to Medicare beneficiaries surrounding their rights, responsibilities, and the risks they face when settling a claim with a non-submit MSA. At a minimum, CMS may not automatically acknowledge the non-submit MSA amount as the extent of liability for future medical. Consequently, the Medicare beneficiary may be placed in a position to defend the MSA amount and their spend from that amount at some point years in the future.

Other MSA Matters

  • Submission of settlement documents:  CMS continues to identify cases where settlement occurred, and the settlement documents were not forwarded to CMS. These documents must be submitted to make the MSA effective in CMS’s system.
  • Electronic attestation:   Mr. Jenkins indicated that MSA administrators are not submitting yearly and final attestations electronically even though this option is available. He encouraged its use.
  • State statutes:  Advised that parties who wish to limit the MSA per the Georgia 400-week cap need to provide an order from the Georgia Workers’ Compensation Board confirming the claim as non-catastrophic. Also, if a California Independent Medical Review (IMR) confirms the denial of certain care, CMS will not exclude the denied care from the MSA without an “Alternative Treatment Plan” from the treating physician.
  • Pricing of Prescription Drugs:  Addressed a question about whether CMS would consider another pricing mechanism for prescription drugs other than Red Book by saying that CMS is always open to a discussion on alternatives.
  • Lack of updated medical treatment:  In situations where the claimant has not been treated in several years CMS will not assume that this is sufficient evidence to demonstrate that no further care is necessary. Instead, CMS will consider the worst-case scenario and assume that the claimant will return for care.
  • Comorbidities that prevent surgery:  If a comorbidity, such as cardiac or respiratory problems, prevents a surgery from proceeding, CMS will assume that the person will improve and thus allocate the surgery in the MSA.
  • Release from care statements:  If a treating physician releases a claimant from care this does not automatically create a presumption of no future care. CMS assumes that if a specialist releases the claimant from care that there may be follow-up with a primary care physician for ongoing maintenance unless otherwise indicated.
  • MSA Amended Reviews:  Advised that parties who have a previously approved MSA that falls outside of the 72-month window for submitting an Amended Review can still fund that older approved MSA as it will be the only one on record with CMS.

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

 

CMS Rolls Out ACH Payment Option for Recovery Debts

February 23, 2022

Red Medicare button on a keyboard to illustrate Medicare conditional payment.

The Centers for Medicare and Medicaid Services now provides ACH payment option for Medicare conditional payment debts.

The Centers for Medicare and Medicaid Services (CMS) is now accepting recovery debt (Medicare conditional payment recovery) payments via ACH (Automated Clearing House) transactions. CMS’s February 18, 2022 announcement says this applies to Non-Group Health Plans (NGHP) as well as Group Health Plans (GHP).

Employers, insurers, third-party administrators, attorneys, and plan sponsors can send payments electronically to the Commercial Repayment Center (CRC) or Benefit Coordination & Recovery Center (BCRC) for processing. ACH setup must be coordinated with the CRC and/or BCRC.

The CMS announcement states:

“ To begin sending payments using ACH, please send an email to the appropriate email address below with “ACH Set Up” in the subject line. Be sure to include a specific point of contact with your organization for the CRC or BCRC. The BCRC/CRC will reach out directly to get the process started.

For the CRC: Please submit an e-mail to CRCACHpayments@performantcorp.com

For the BCRC: Please submit an e-mail to BCRC_Finance@GDIT.com “

Practical Implications

The ACH payment option means that CMS is now allowing payers to provide their bank account routing and account numbers to facilitate payment of Medicare conditional payment debts.  This is a benefit to the payer in not only avoiding the cost of a postage stamp but to having a quick electronic confirmation of receipt of payment.   This can avoid a “lost in the mail” or a late payment situation which can result in the imposition of interest charges from Medicare.

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

Marking Insurance Careers Month During “The Great Resignation”

February 22, 2022

Two employees walking into office building during The great resignation

How is the insurance industry faring in the choppy waters of “The Great Resignation”? February is Insurance Careers Month, the perfect time to assess where we are after two years of the pandemic.

As a specialty provider of Medicare Secondary Payer (MSP) compliance and Medicare Set-Aside (MSA) services, Tower MSA Partners is a member of the workers’ compensation industry. We’re happy then to commemorate and promote the Sixth Annual Insurance Careers Month. Insurance and related services have been a great career path for many of us at Tower and we’re glad to do our part to raise awareness for the next generations.

At the close of 2021, the Department of Labor/Bureau of Labor Statistics (BLS) put the insurance sector’s employee census at more than 2.8 million employees, with a 1.9% unemployment rate. It’s generally been a stable and resilient business, weathering the pandemic and various other catastrophes fairly well. This is borne out by a new report by Capital Relocation Services (CapRelo), which says that the insurance industry has managed to retain employees relatively better than many industries both in volume and tenure.

But as we look hopefully towards a post-pandemic future, what’s in the cards on the employment front? Will “The Great Resignation” take a terrible toll on the insurance sector as it has with so many other industries?

First, let’s look at what people are talking about when they refer to The Great Resignation.  Start with this:  In December 2021, the “quit” rate was 2.9% as 4.3 million workers voluntarily left their jobs. This was down from November’s highwater mark of a 3.0% quit rate  (4.5 million jobs).  (Source: BLS – Job Openings and Labor Turnover Summary, or “JOLTS” report). This massive flight from jobs is not just happening in the U.S., it’s a global phenomenon, and there are various theories and explanations for why this is happening, with the only commonality agreed upon is that it is related to the pandemic. And there were 4.6 million more job openings than unemployed workers in December. Whatever the reason, it’s an employee’s market, leaving employers struggling to retain and recruit workers.

Industries with low paying jobs and public-facing jobs are among the hardest hit, but there are other reasons beyond low pay and poor conditions that lead to job quits. Gallup surveys put burnout as #1 on the list of reasons why employees are quitting jobs. Feeling unsafe is another frequently cited reason. People don’t want to return to the physical workplace if they don’t feel safe from contracting an illness that they may bring home to children or elderly parents.

But what’s happening to all the workers who quit? Are they just staying home and abandoning the job market entirely?  Well, yes, some are  – in the form of retirement or launching a new business.  Others are seizing the opportunity to trade up on a job, exit a low-paying company/industry, or rethink and re-engineer their career in some other way. While the phenomena of the post-pandemic labor market has been popularly dubbed “The Great Resignation,” other observers think it is more precise to define it as a “Great Realignment” or a “Great Reshuffle.”

In its Q3 2021 U.S. Insurance Labor Market Study and the related whitepaper,  Coming Out Ahead in the Great Reshuffle, The Jacobsen Group, a leading insurance recruitment organization, talked about this:

“While the overall economy is experiencing what many are calling “the Great Resignation,” the insurance industry is encountering more of a “Great Reshuffle.” Professionals who were waiting to make moves earlier on in the pandemic are exploring their options. Individuals are reevaluating their place within their current companies, considering future opportunities and looking forward as offices reopen and the economy continues its recovery.”

In fact, the insurance industry was grappling with certain employment challenges well before the pandemic.  As an industry with an aging workforce, we’ve been faced with the daunting challenge of a retirement talent drain of about half the workforce over the next decade.  And to attract young Gen Z workers and retain millennials, there is the critical need to re-examine and redefine our industry’s value and meaning to generations for whom a sense of  “mission” is table stakes. Plus, as with many long-term industry sectors, there’s been a need to bolster the workforce with deep technology expertise.

Regardless of whether it’s called a great resignation, realignment or reshuffle, employees are sitting in the proverbial catbird seat right now. Insurance organizations need to be proactive in both retaining the talent and expertise they currently have and in retooling to compete aggressively for the talent of the future.

The Transitions

In 2021 a group of leaders in the workers’ compensation industry founded The Transitions with the mission to think strategically about how to handle the influx and outflux of talent over the coming decade.  The Transitions offers an extensive webinar series on such topics as reimagining management style, communication models and technology models in WC.  Additionally, a mentorship program to help recruit and retain talented individuals through professional and personal growth.  We encourage you to check out their website and follow the organization on LinkedIn.

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