Dan Anders Quoted in Claims Journal on Non-Submit MSAs and Section 111 Penalties
Posted on March 24, 2022 by Tower MSA Partners
CMS is serious about protecting Medicare’s funds. Over the years, the agency has had policies that were not enforced, including sizeable civil monetary penalties for not complying with Section 111 reporting rules and denying payment for medical treatment when another payer was responsible. But things are changing. CMS has denied payments and has taken steps towards collecting those penalties. Claims Journal Editor Jim Sams explores these actions in this piece, which quotes Tower’s Chief Compliance Officer Dan Anders.
CMS Rules on Settlement Reporting May Sting Insurers and Claimants Both (claimsjournal.com)
CMS Clarifies Policy on Non-Submit MSAs in Updated Reference Guide
Posted on March 22, 2022 by Daniel Anders
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 188.8.131.52 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 email@example.com.
Marking Insurance Careers Month During “The Great Resignation”
Posted on February 22, 2022 by Tower MSA Partners
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.
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.
- Tower MSA Partners Supports Insurance Careers Month!
- Women’s History Month: Celebrating Tower’s History as a Women-Owned Business
- Tower MSA Partners 10-Year Anniversary and 10 Distinguishing Achievements
Premier Webinar: WC Settlements in Light of CMS Policy on Non-Submit MSAs
Posted on January 25, 2022 by Tower MSA Partners
The Centers for Medicare and Medicaid Services (CMS) recent policy statement which considers non-submit/evidence-based MSAs “as a potential attempt to shift financial burden” to Medicare left many questions in its wake (See CMS: Non-Submit MSAs Potentially Shift Costs to Medicare). It has triggered many payers, along with injured workers and their attorneys, to reconsider the choice to avoid the CMS MSA review and approval process.
On Thursday, February 3 at 2:00 PM ET, Tower’s Chief Operations Officer Kristine Dudley and Chief Compliance Officer Dan Anders will address the many questions which arise out of this announcement and walk attendees through how a move from a non-submit to submit MSA program can still yield cost-effective settlements with the added protection of CMS approval.
Here’s just some of what you will learn:
- Background on CMS policy on submit vs. non-submit MSAs and what it means for the future of MSAs
- Potential defenses to CMS claim that a non-submit MSA was deficient
- A how-to guide to transition from non-submit to submit MSA program which still settles WC cases
- Tools available to contain MSA costs whether the MSA is submitted or not
While the webinar focus is on those that have primarily pursued a non-submit MSA course, portions on MSA cost containment and ensuring the availability of MSA funds over a lifetime are important to submitters and non-submitters alike.
A Q&A session will follow the presentation, and you can send your questions to Daniel.Anders@TowerMSA.com now. Please click the link below and register today!
Tower’s Dan Anders Reviews MSP Policies from Last Year and Predicts 2022 Actions
Posted on January 20, 2022 by Tower MSA Partners
WorkersCompensation.com’s Nancy Grover captured the thoughts of Tower’s Chief Compliance Officer Dan Anders on a variety of Medicare Secondary Payer and Medicare Set-Aside issues from 2021 and 2022 in a recent article. MSAs cost less than you think, opioid allocations are down, and the PAID Act makes obtaining Medicare Advantage Plan data easier. Plus, the Centers for Medicare and Medicaid Services flat-out said that MSAs that are not approved by CMS could be “a potential attempt to shift financial burden” to Medicare.
The article, “MSA Policy Updates, Changes Likely in Store for 2022, Expert Predicts,” can be read here. Remember it’s just a one-time process of subscribing to this free section of Workerscompensation.com.
CMS Releases Updated Section 111 NGHP User Guide
Posted on December 28, 2021 by Daniel Anders
The Centers for Medicare and Medicaid Services (CMS) has released Version 6.6 of its Section 111 NGHP User Guide. Below is a summary of the notable updates and practical implications.
Funding Delayed Beyond TPOC Start Date Field
Last month we discussed an 11/03/2021 Alert from CMS on the use of Field 82 Funding Delayed Beyond TPOC Start Date. Field 82, per the Section 111 User Guide, is to be used in specific circumstances where the amount the claimant Medicare beneficiary is to be paid is not known at the time the settlement occurs. Per CMS, this happens most often in mass tort settlements.
As we previously related, the CMS Alert is confusing when it refers to the date settlement funds are “dispersed.” CMS seems to assume that the date inserted into Field 82 is not only the date that the settlement amount is determined but is the same date the funds are dispersed. However, these dates may be weeks or months apart. Our recommendation was to place the date settlement funds are dispersed in Field 82.
In its update to the User Guide, CMS now acknowledges this as the correct use of Field 82. Specifically, CMS states (Chapter III: Policy Guidance):
184.108.40.206 Timeliness of Reporting
NGHP TPOC settlements, judgments, awards, or other payments are reportable once the following criteria are met:
- The alleged injured/harmed individual to or on whose behalf payment will be made has been
- The TPOC amount (the amount of the settlement, judgement, award, or other payment) for
that individual has been determined.
- The RRE knows when the TPOC will be funded or disbursed to the individual or their
RREs should retain documentation establishing when these criteria were or will be met. RREs
should not report the TPOC until the RRE establishes when the TPOC will be funded or
disbursed. In some situations, funding or disbursement of the TPOC may not occur until well
after the TPOC Date. RREs may submit the date the TPOC will be funded or disbursed in the
corresponding Funding Delayed Beyond TPOC Start Date field when they report the TPOC Date
and TPOC Amount, but must do so if the TPOC Date and date of the funding of the TPOC are
30 days or more apart.
Timeliness of MMSEA Section 111 reporting for a particular Medicare beneficiary will be based
upon the latter of the TPOC Date and the Funding Delayed Beyond TPOC Start Date.
There is a settlement involving an allegedly defective drug where a large settlement is to be
disbursed among many claimants.
The settlement provides a process for subsequently determining who will be paid and how much.
Consequently, there will be payment to or on behalf of a particular individual, but the specific amount of the settlement, judgment, award, or other payment to or on behalf of that individual is not known as of the TPOC Date. RREs are to submit the date of the settlement in the TPOC Date field and the amount of the settlement in the TPOC Amount field.
In this example, the determination of the TPOC Amount, as well as the funding or disbursement of the TPOC, will be delayed after the TPOC Date. Once the TPOC Amount and the date when the TPOC will be funded or disbursed are determined, the RRE should submit the record with the appropriate date in the corresponding Funding Delayed Beyond TPOC Start Date field.
What CMS is getting at here is they want to know when the claimant receives the settlement funds so they can correctly time their recovery efforts. For Responsible Reporting Entities (RREs) this means if payment will be delayed more than 30 days post the TPOC date, then they must hold off on Section 111 reporting until the date the settlement funds will be disbursed has been identified.
We note that while CMS expects the above rule to apply to mass tort settlements, there are certainly cases, both liability and workers’ compensation, where funding may be delayed more than 30 days beyond the TPOC date. Thus, we believe the effect of this update on the “Timeliness of Reporting” rule will likely be much wider.
In terms of making this simpler for those entering the TPOC information, if the disbursement of settlement funds commonly occurs more than 30 days post-TPOC date, it may be easiest to always enter a date in the corresponding Funding Delayed Beyond TPOC Start Date field along with the TPOC Date and TPOC Amount, whether less than or more than 30 days from the TPOC date.
Updates to No-Fault Policy Limit
Also last month we discussed another CMS Alert reminding RREs where, depending upon state law or the terms of a given policy, the no-fault policy limit may vary. The Alert reminded RREs to update to the new policy limit as quickly as possible, including the use of an “off-cycle” report (A report made in addition to the required quarterly reporting). In our analysis of this Alert, we expressed concern as to whether such “off-cycle” reporting is mandatory or recommended. In other words, if mandatory and not done, that it would be considered non-compliance and potentially subject the RRE to penalties.
The updated User Guide CMS states as follows (Chapter III: Policy Guidance, Section 220.127.116.11):
Note: In some states, depending on various factors associated with the incident being reported, no-fault policy limits may vary. The reported Policy Limit should reflect the amount the RRE has accepted responsibility for at the time the record is submitted or updated. Just as importantly, if the Section 111 record needs to be corrected to reflect a new Policy Limit, the RRE should update the record as soon as possible.
While CMS states the RRE should update the record as soon as possible, there is no reference to “off-cycle” reporting. We assume that while “off-cycle” reporting is preferred, that proper compliance will be determined based upon the quarterly report which includes the updated no-fault policy limit.
$750 Threshold Maintained for Section 111 Reporting and Medicare Conditional Payment Recovery
In a December 15, 2021, Alert CMS announced the 2022 recovery threshold for liability, no-fault and workers’ compensation settlements will remain at $750. Accordingly, Total Payment Obligations to the Claimant, TPOCs, in the amount of $750 or less are not required to be reported to CMS through the Section 111 Mandatory Reporting process, nor will CMS attempt to recover conditional payments for TPOCs of this amount (The threshold does not apply to liability settlements for alleged ingestion, implantation or exposure cases).
As CMS is keeping the $750 threshold for mandatory reporting and conditional payment recovery there are no changes to the reporting processes or determinations as to when conditional payments should be investigated or resolved.
If you have any questions regarding these updates, please contact Dan Anders at firstname.lastname@example.org or 888.331.4941.
A Holiday Wish from Tower MSA Partners
Posted on December 22, 2021 by Tower MSA Partners
Earlier this year Tower MSA Partners celebrated its 10th anniversary. As 2021 comes to a close we again thank you, our client partners, for your support and loyalty, some for all of those 10 years and some for only the past few months. Your trust in us to provide MSP compliance services and settlement solutions is never taken for granted . . . nor do we rest on our laurels.
The Tower team looks forward to launching into a new year with new initiatives and enhancements to provide you the best in customer service, systems and controls which keep client data secure from cyber threats and a commitment as your partner to help settle claims that provide the best in care, cost and compliance.
Our wish to you is a safe, happy and healthy holiday season filled with warmth and laughter. Merry Christmas and best wishes in the new year.
How Did Workers’ Comp Execs Fare During COVID-19?
Posted on December 10, 2021 by Tower MSA Partners
How has the Covid-19 affected workers’ comp organizations? What changed professionally for risk managers and claims professionals during the pandemic? Did temporary policies become permanent? Tune to WCI-TV to find out.
Tower MSA Partners has been the exclusive sponsor of WCI-TV since its inception.
“Instead of commercials for our Medicare Secondary Payer compliance services, we’ve explored topics like opioid management, how success is measured, and ways to overcome barriers to claim closures,” said CEO Rita Wilson.
Naturally, an ongoing, international Covid-19 pandemic rated attention. “We wanted to hear how organizations maintained a sense of unity while working from home and how lockdowns changed sales, marketing, and purchasing practices,” explained Chief Compliance Officer Dan Anders.
Among Tower’s TV guests will be Susan Shemanski, Vice President of Corporate Risk Management of the Adecco Group, Joe Berardo, CEO of Carisk Partners, Porter Leslie, CEO of Ametros, and Mark Meyer, Claim Attorney with the Montana State Fund.
WCI-TV airs throughout the convention center and shuttles, in hotel guest rooms and on WCI’s website YouTube channel. These interviews will also be available on Tower’s LinkedIn homepage.
Tower is pleased to be part of the 75th Annual WCI Conference; see for more https://www.wci360.com/conference/ information.
Tower MSA Partners Arranges for CMS Officials to Headline WCI’s MSP Sessions
Forbes Features Tower CTO‘s Article, “How to Help the Masses Make Sense of Cybersecurity”
Posted on December 8, 2021 by Tower MSA Partners
Tower’s Chief Technology Officer Jesse Shade has published an article on the Forbes Technology Council channels, reminding fellow IT pros that most tech users don’t understand cybersecurity. And that when IT folks explain why doing certain things are important, users are more likely to do them. Here’s his explanation of Multi Factor Authentication or MFA:
MFA stands for multifactor authentication. It is a security solution that requires more than one method of proving (authenticating) your identity. You have already used MFA if you have ever logged into an online account and were asked to provide information so you could:
Receive a verification code via text or email.
- Provide an answer to a security question.
- Receive a verification code on a phone or computer authenticator application.
- Use biometrics (fingerprint or facial recognition) on your computer or phone.
The rationale behind MFA is that if a bad actor gains access to your username and password, they aren’t likely to also have your mobile phone or computer where you will receive the second factor. It is even less likely they will have your fingerprint, retinal scan or the answers to your security questions. There are multiple factors to authenticate that you are who you say you are, hence, MFA.
How to Help the Masses Make Sense of Cybersecurity is a must-read piece on the role of IT pros in arming non-IT tech users to serve as the front-line cybersecurity force they must be.
Feel free to reach out to Jesse at email@example.com.
Tower MSA Partners Arranges for CMS Officials to Headline WCI’s MSP Sessions
Posted on November 30, 2021 by Tower MSA Partners
When the WCI Conference invited Tower MSA Partners to produce the first day of its Medicare Secondary Payer (MSP) compliance track, Tower asked representatives from the Centers for Medicare and Medicaid Services (CMS) to kick-off a trio of MSP panels.
“It’s the 20th anniversary of CMS launching its Medicare Set-Aside (MSA) review program,” said Tower’s Chief Compliance Officer Dan Anders. “We thought this would be a great opportunity for attendees to listen and ask questions of the key policymakers on all matters related to MSP enforcement.”
The section will start with a CMS Townhall covering such matters as the implantation of the PAID Act and how not to run afoul of CMS when submitting an MSA at 1 p.m. on Tuesday, December 14. Anders will moderate the Townhall. Panelists appearing via video will be Deputy Director of MSP Program Operations Jackie Cipa, Director MSP Program Operations Steve Forry, and John Jenkins, Jr., Health Insurance Specialist, Division of MSP Program Operations, CMS.
Following at 2 p.m. is “Don’t Forget Medicare Conditional Payments!” moderated by Tower’s Chief Operating Officer Kristine Dudley and featuring Rasa Fumagalli, Director of MSP Compliance with Synergy Settlement Solutions and Heather Schwartz Sanderson of the Sanderson Firm.
“Conditional payment matters frequently take a backseat to Medicare Set-Asides,” Dudley said. “These experts will show you how to discharge Medicare conditional payment and Medicare Advantage plan reimbursement demands with confidence for both injured worker and payer.”
Anders returns as a panelist with Ametros General Counsel Shawn Deane and Mark Meyer, Claim Attorney for Montana State Fund, for the 3:15 p.m. session, “It’s Still Ok to Submit an MSA.” Sanderson will moderate the discussion designed to show how to balance care, cost and compliance to secure a CMS-approved MSA.
The 75th Annual WCI Conference will be held December 12-15 at the Orlando World Center Marriott. Please see https://www.wci360.com/conference/.
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