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CMS Releases Annual Report on CRC Conditional Payment Recovery

September 5, 2017

On 8/30/2017 the Centers for Medicare and Medicaid Services released its annual report on the Commercial Repayment Center’s (CRC) Medicare conditional payment collections for the 2016 fiscal year (10/1/2015 through 9/30/2016). In short, the report documents the CRC identified $243.68 million in conditional payments, collected a net of $106.29 million and returned $88.35 million to the Medicare Trust Fund after subtracting collections costs.

The CRC, which is paid on a contingency basis, has responsibility for Medicare conditional payment recovery efforts involving Group Health Plans and Non-Group Health Plans (NGHP). NGHPs are liability insurance (including self-insurance, no-fault insurance or workers’ compensation). FY 2016 was the first fiscal year in which the CRC had responsibility for recovery of conditional payments from NGHPs, a task previously handled by the Benefits Coordination and Recovery Center (BCRC). Recovery claims involving Medicare beneficiaries remain with the BCRC.

A copy of the report may be found on the CMS website here.

Some observations from the report:

CMS does not split out GHP and NGHP recovery information which makes it difficult to ascertain, one, the effect of adding NGHPs to the CRC’s responsibility has had on overall collections and, two, the percentage of overall collections attributable to GHPs versus NGHPs.
Despite identifying $243.68 million on conditional payments, the CRC only recovered $117.40 million, shortly under half (48%) of the identified amounts. This may be the result of the provided data only documenting debts that are identified and collected within the fiscal year. The report indicates that collection of FY 2016 identified debts continues into the next fiscal year.
Connected to the above observation, it is disappointing that the CRC does not provide a more comprehensive multi-year view of its recovery work. Information such as amounts recovered over the past several years, average turnaround time from demand to repayment, and the above-mentioned GHP vs. NGHP data would be invaluable to understanding the overall program.
Provided in the report is a statement indicating amounts returned to the Medicare Trust Fund dropped from $125.05 million in FY 2015 to $88.35 million in FY 2016. CMS attributes the drop to “a decrease in GHP recoveries due in part to the maturity of the mandatory insurer reporting under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 decreasing the instances of mistaken payments, as well as the CRC’s resolution of pending available recoveries.” This drop is nonetheless surprising given that FY 2016 marked the CRC’s first year recovering from NGHPs!

Takeaways

We do not recommend any changes to your Medicare conditional payment resolution program or process based upon the report. The report merely provides a window into the efforts by the CRC at recovering conditional payments from GHPs and NGHPs.

Practical Implications of the Revised CMS WCMSA Reference Guide

August 18, 2017

Earlier this month the Centers for Medicare and Medicaid Services (CMS) released a revised Workers’ Compensation MSA Reference Guide (WCMSA) (find Version 2.6 here) with several notable changes and additions impacting its review of MSAs in workers’ compensation cases. The Tower MSA compliance team has taken some time to review and consider not only the substantive impact these changes have on our processes, but the implications for our clients. Please find below a summary of the notable changes to the Reference Guide along with practical implications.

Recognition of a Hearing on the Merits of the Case (Section 4.1.4)

The relevant change to this section is as follows:

Because the CMS prices based upon what is claimed, released, or released in effect, the CMS must have documentation as to why disputed cases settle future medical costs for less than the recommended pricing. As a result, when a state WC judge or other binding party approves a WC settlement after a hearing on the merits, Medicare generally will accept the terms of the settlement, unless the settlement does not adequately address Medicare’s interests. This shall include all denied liability cases, whether in part or in full . . .

Practical Implications

Over the years CMS has had several definitions of under what circumstances it will recognize a hearing on the merits, but the takeaway has consistently been that CMS gives itself complete discretion as to whether or not it will recognize a particular judicial decision, order or finding as limiting the MSA. Some commentary in response to the Reference Guide revisions has indicated the changes found in this section will result in Zero MSAs based upon a complete claim denial no longer being approved without a hearing on the merits confirming the basis for the denial. We are not certain this is the correct inference to draw from this change. This section addresses the effect of a hearing on the merits of a case to the projection of future medical care. If there is no hearing on the merits of the case, which is the situation in most MSA submission, Zero MSA or otherwise, then this section should have no applicability to CMS’s review of a Zero MSA.

Tower MSA’s plan is to stay the course on the long-used criteria for a Zero MSA based upon a claim denial unless and until we identify any changes through the MSA submission process which requires modification to these criteria.

Recognition of State-Specific Statutes (Section 9.4.5)

The relevant change to this section as follows:

Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate. For those states where treatment is varied by some type of state-authorized utilization review board, the submitter shall include the alternative treatment plan showing what treatment has replaced the treatment in question from the beneficiary’s treating physician for those items deemed unnecessary by the utilization review board. Failure to include these items initially will result in pricing at the full life expectancy of the beneficiary or the original value of treatment without regard to the state utilization review board recommendation.

Practical Implications – State-Legislated Time Limits: Similar towards its policy on recognizing decisions stemming from hearings on the merits, CMS has consistently given itself complete discretion as to when it will recognize any state statute as providing a limitation on the medical care allocated in the MSA. Experience has shown CMS to be unwilling, under most circumstances, to recognize a state statute as having the affect of limiting medical care in the MSA. A notable example is the Georgia statutory provision limiting an employer’s responsibility for medical care to 400 weeks post the date of injury in non-catastrophic claims (applicable to cases with DOIs of 7/1/2013 and later). We have yet to see an instance where CMS has agreed to limit the MSA amount based upon this statute.

The changes to this section of the Reference Guide provide hope that CMS may be more open to recognizing state statutes, like Georgia’s, as a basis for limiting medical treatment and medications in the MSA. Unfortunately, the requirement “to show by a finding from a court of competent jurisdiction . . . that the specific WCMSA proposal does not meet the state’s list of exemptions to the legislative mandate” presents a challenge in attempting to use a statutory provision to limit the MSA. For example, in Georgia a workers’ compensation case is by default considered non-catastrophic unless accepted by the employer or carrier as catastrophic or the claimant’s attorney submits to the Georgia Workers’ Compensation Board a request for the claimant to be designated as catastrophic. It is unclear at this point whether confirming the non-catastrophic nature of the claim in board approved settlement documents or a separate finding by the board that the claim is non-catastrophic will be sufficient for CMS to recognize the limitation. Based upon our experience with similar types of issues, we expect CMS to require a specific finding separate and apart from the settlement documents. Accordingly, this will require settling parties, whether in Georgia or in other states, to work with their WC board, commission or other judicial authority to provide the necessary finding confirming the claim does not meet any of the exemptions to the statute.

Practical Implications – Utilization Reviews: Revisions to this section of the Reference Guide also address the use of URs to limit care in the MSA. According to the requirements delineated by CMS the following must be presented with the MSA submission:

UR denial pursuant “some type of state-authorized utilization review board.”
“Alternative treatment plan” from the treating physician showing what treatment has replaced the UR denied treatment or medications.

The addition of the language regarding URs raises more questions than it answers. What does CMS define as a UR Board? For example, the California Independent Medical Review (IMR) process, while statutorily created, does not include a UR review board (Although we believe it can be argued that the IMR process is equivalent to such a board). Further, CMS fails to define what would be considered an “alternative treatment plan.” It would seem that an intransigent treating physician could refuse to provide alternative treatment, thus resulting in inclusion of treatment or medications in the MSA denied through the UR process. It is unfortunate CMS added this “alternative treatment plan” requirement as it undermines the very reason a UR process is in place, namely to limit medical care based upon evidence-based treatment guidelines. As Tower MSA submits MSAs to CMS with UR denials we will provide further recommendations as to how CMS is defining a “UR board” and “alternative treatment plan.”

Addition of “Amended Review” to Re-Review Policy (Section 16.0)

As fully explained in the Tower MSA article of 7/12/2017, “Second Chance with MSA Approval!: New CMS Policy Allows for Review of a New MSA Post a Prior Approval,” CMS has introduced what is called an Amended Review process for cases meeting the following criteria:

Practical Implications: The Amended Review criteria presents an opportunity to have a second bite at the CMS MSA review apple when it comes to claims which despite having a previously approved MSA, failed to settle medical. It is important to note that the Amended Review process applies not only to MSA determinations resulting in counter-highers, but any MSA determination, approved as submitted or counter-lower, that meets the above-defined criteria. Please contact Tower MSA to discuss eligible claims.

Added Section on Required Resubmission (Section 16.1)

The addition to this section is as follows:

Where a proposed WCMSA amount has been closed due to inactivity for one year or more from the original date of submission, a full-file resubmission will be required.

Practical Implications: Previously a case closed for inactivity for one year or more would be reopened if the submitter provided the documentation in response to a Development Letter (The most common reason for case closure). CMS is now indicating solely providing the documentation in response to the Development Letter will be insufficient for them to reopen, instead a completely new MSA proposal and supporting documentation will be required. Tower MSA will advise when a case meets the criteria for filing a resubmission.

Additional MSA Administration Guidelines (Section 17.1)

The addition to this section is as follows:

Although beneficiaries may act as their own administrators, it is highly recommended that settlement recipients consider the use of a professional administrator for their funds.

Practical Implications: While not requiring professional administration, this is an acknowledgement by CMS of the difficulties a claimant may face on their own in administering an MSA. Tower MSA agrees with CMS on the benefits of professional administration and when requested by our client will provide MSA professional administration through our partner, Ametros.

Other less notable changes found in the Reference Guide apply to clarifying the order of jurisdictional precedence for MSA pricing, updating requirements for spinal cord stimulator pricing, updating off-label medication requirements, clarifying total settlement calculation guidelines and clarification of change of submitter requirements.

Final Comments: While we are pleased CMS is addressing the concerns expressed by Tower MSA and others in the MSP compliance field concerning a second chance at CMS review of an MSA and recognition of state statutory limitations on injury-related medical care, the real test will be in the coming weeks and months the affect these revisions have on the review of MSAs submitted to CMS for approval. Tower MSA continuously monitors these responses and will provide our clients appropriate guidance on the impact, or lack thereof, of these revisions and additions to the WCMSA Reference Guide.

Tower MSA Partners Chief Comliance Officer, Dan Anders, WCI-TV interview on Tower’s Opioid Discussion at WCI 2017 Conference

August 7, 2017

Tower MSA Partners Chief Compliance Officer, Dan Anders, spoke with WCI-TV’s Ed Heiland about Tower MSA’s theme this year at WCI 2017 Conference. Tower MSA’s theme this year is a discussion on opioids that delves on intervention strategies, claim techniques, PBM tools, MSA impact, and public policy. Dan’s interview with Ed Heiland may be found here.

During WCI 2017 Conference, Dan Anders also spoke to Michael Calendrillo, from WCI-TV, about the latest in Medicare Secondary Payer compliance topic in Day 2 of the conference. Dan’s interview with Michael Calendrillo may be found here.

Other notable WCI-TV interviews during the WCI 2017 Conference include:

Mark Pew, Senior VP, Prium, speaking to Kimberly Bottom, from WCI-TV, about the importance and the process of using Physician Peer Review for reducing the use of Opioids. Video of the interview can be found here.
Phil Walls, RPh, Chief Clinical and Compliance Officer, myMatrixx, speaking to Kimberly Bottom about the role of a Pharmacy Benefit Management (PBM) in addressing Opioid abuse. Video of the interview can be found here.
Melvin Phol, MD, FASAM, Chief Medical Officer, Las Vegas Recovery Center speaking to Kimberly Bottom about Opioid addiction. Video of the interview can be found here.
Kimberly George, SVP of Corporate Development, M & A and Healthcare, Sedgwick and Mark Walls, VP, Communications & Strategic Analysis, Safety National speaking with Ed Heiland, from WCI-TV, about hosting Centers for Excellence that brings cutting edge topics related to Workers Compensation and Women’s Alliance. Video of the interview can be found here.
Kimberly George and Mark Walls’ speaking with Ed Heiland about the Centers for Excellence’s Risk Management track related to private equity investing in workers compensation and the National Workers Compensation Review in part 2 of the interview. Video of the interview can be found here.
Carrie Struzynski, RN, LHRM, CHRM, MSN, PhD, speaking with Kimberly Bottom about how Randstad addresses opioids on worker’s compensations claims. Video of the interview can be found here.

Tower MSA Partners to Sponsor Workers’ Compensation Institute (WCI) – TV

August 1, 2017

Tower MSA Partners is sponsoring WCI-TV, the televised coverage of Workers’ Compensation Institute’s Workers’ Compensation Education Conference, and is dedicating its TV segments to examining opioids.

“Tower is pleased to partner with WCI to sponsor WCI-TV for the 3rd consecutive year and participate in the interview process throughout the conference. With opioid use in the forefront of issues facing workers’ compensation payers, we will explore prescribing habits, addiction and interventions from different disciplines within the system,” said Rita Wilson, CEO of Tower MSA Partners.

Some of the perspectives and industry leaders featured in Tower’s interviews are:

Claims Management – Carrie Struzynski, RN, LHRM, CHRM, MSN, PhDc, Quarterback/Senior Manager, Risk Management, Safety & Insurance, Randstad North America, Inc.
MSP Compliance – Dan Anders, Chief Compliance Officer, Tower MSA Partners
Peer Review – Mark Pew, Senior Vice President, PRIUM
Physician – Mel Pohl, MD, FASAM, Chief Medical Officer, Las Vegas Recovery Center
Pharmacy Benefit Management – Phil Walls, RPh, Chief Clinical & Compliance Officer, myMatrixx
Public Policy – Mark Walls, Safety National’s Vice President of Communications, and Kimberly George, Senior Healthcare Advisor, Sedgwick Claims Management Services

From its studios near the exhibit hall, WCI-TV’s programming will be aired throughout the conference area, in conference hotels’ guest rooms, on shuttles, WCI’s website, e-blasts, and on You Tube. It is produced by CNTV, a Winter Park, Florida-based company that delivers a news approach to the convention television business.

The 2017 WCI WCEC will be held August 6-9 at the Orlando World Center Marriott.

The full article may be found here.

Accuracy in Section 111 Reporting of ORM Vital to Avoiding Unnecessary Repayment Demands from Medicare

July 24, 2017

While the Commercial Repayment Center (CRC) has faced some valid criticism over the course of the past year and half in relation to its recovery efforts on behalf of the Centers for Medicare and Medicaid Services’ (CMS), not all problems start with the CRC. CRC’s recovery efforts are driven by the data employers, carriers and self-insured entities report to Medicare through the Section 111 Mandatory Insurer Reporting process. Chief among the data elements reported is acceptance of Ongoing Responsibility for Medicals (ORM) and the termination thereof. If this data is reported inaccurately or there is a failure to report required data, then the applicable plan may be faced with inappropriate recovery demands by the CRC.

Applicable Plan Reporting of ORM is the Catalyst for CRC Recovery Efforts

Since October 5, 2015, the CRC has had responsibility for the recovery of conditional payments where the insurer or employer (including self-insured entities) is the identified debtor, known in CMS terms as the “applicable plan.” The CRC learns of opportunities to recover through the Section 111 Mandatory Insurer Reporting process. In other words, the applicable plan is the catalyst for Medicare conditional payment recovery by its reporting of ORM.

The mandatory reporting provisions of the Medicare Secondary Payer Act require the applicable plan to report to Medicare in three instances – the acceptance of ORM, the termination of ORM and issuance of a Total Payment Obligation to the Claimant (TPOC), settlement judgment, award or other payment. In regard to ORM, two key data elements reported are the date responsibility for ORM is accepted and the accepted diagnosis codes. Once this information is reported the following actions are initiated by CMS’s contractors:

1. The BCRC, which handles Medicare coordination of benefits, should deny payment for medical bills submitted for payment in which the billed diagnosis codes match or is similar to the reported diagnosis codes.

2. The CRC identifies medical claims that Medicare has paid that it deems related to the reported diagnosis codes.

Upon the CRC identifying treatment related to the reported diagnosis codes, it will issue a Conditional Payment Notice (CPN) to the applicable plan which itemizes charges deemed related to the injury. The applicable plan has 30 days from the date on the CPN to dispute charges after which a Demand Letter will issue demanding repayment for the charges identified by the CRC. A Demand Letter provides 120 days from receipt of the letter for the applicable plan to appeal all or some of the charges or issue payment. If payment is not issued within 60 days of receipt, interest begins to accrue from the Demand Letter date.

Reporting Accurate Acceptance of ORM and Diagnosis Codes

The trigger for reporting ORM is a claimant identified as a Medicare beneficiary and the assumption of ORM by the applicable plan. ORM is reported when the applicable plan has made a determination to assume responsibility for ORM, or is otherwise required to assume ORM—not when (or after) the first payment for medicals under ORM has actually been made. Accordingly, the ORM acceptance date is typically the date of injury.

Along with the ORM acceptance date, at least one ICD-10 diagnosis code must be reported for the diagnosis that has been accepted on the claim (If more than one diagnosis has been accepted, then additional diagnosis codes are reported). While medical provider billing records are often used to determine ICD-10 diagnosis codes to report, these should be used as a starting point, not an ending point, in identifying the correct codes to report to Medicare.

Keep in mind that medical providers, and especially hospitals, will often insert into billing records any diagnosis reported to the provider, which are not necessarily the same diagnoses that are being accepted on the claim. Consequently, the person responsible for determining the correct ICD-10 diagnosis code to report, usually the claims handler, must make an independent determination, separate and apart from the medical provider, as to whether the particular diagnosis is being accepted on the claim. If the billing records do not properly represent what is being accepted, or if further diagnosis codes are required to better define what is accepted, then online ICD-10 resources are available to identify codes which correctly represent the accepted body parts and conditions.

Once ORM and the diagnosis codes are reported, ORM is generally not addressed again until the date of ORM termination. However, causally related diagnoses may change over time, either expanding or retracting depending upon the circumstances in the claim. Accordingly, it is important to update the reported ICD-10 codes as necessary over the course of the claim.

ORM Termination Key to Cutting Off Liability to Medicare

Once ORM is accepted, CMS claims the right to recover against the applicable plan through the date of ORM termination. As such, recovery efforts by the CRC may happen years after the ORM was first reported. Further, if there is failure by the applicable plan to terminate ORM when appropriate, then the plan may receive repayment demands from CRC for time periods in which it has no liability to pay for medical treatment. An applicable plan may terminate ORM through the Section 111 Reporting process under the following situations:

Settlement with a release of medicals

No fault policy limit reached

Complete denial of the claim

Statute of limitations has run or medical benefits have otherwise been exhausted pursuant to state law

Judicial determination after a hearing on the merits finding no liability

Statement from treating physician – signed statement from the injured individual’s treating physician that he/she will require no further medical items or services associated with the claim/claimed injuries.

Keep in mind that closing a claim file is not a trigger for ORM termination unless it is accompanied by one of the above situations.

Providing CMS with an ORM termination gives a bookend to recovery by the CRC. If no termination date is provided, then CRC assumes the applicable plan remains liable for injury-related payments.

Recommendations for Ensuring Accurate ORM Reporting

The reporting of ORM acceptance and termination and defining accepted diagnosis codes is so important because it is the applicable plan’s admission of responsibility to pay for medical care during the reported time period and for the reported diagnoses. If an error is made in reporting or there is an omission in reporting, then it can result in attempts by Medicare to recover for conditional payments unrelated to the injury or for time periods during which the applicable plan is not liable. Errors in reporting can also lead to inappropriate denials in the payment of claimant’s medical care by Medicare or Medicare paying for medical care for which the applicable plan is responsible.

Recommendations to avoid these errors and omissions:

1. Train Claims Handlers on ORM Reporting: If a claims handler is responsible for inserting the data required for ORM reporting, then they require training as to when ORM acceptance and termination is to be reported and how to determine the appropriate diagnosis codes to report with ORM acceptance.

2. Effective Quality Assurance of ORM Reporting: Even with training, errors will occur. Additional resources placed into quality assurance of ORM reporting, such as double-checking claims for proper ORM termination and appropriate diagnosis code choices avoids the expenditure of additional resources at a later date to correct errors in reporting and correction of unnecessary recovery demands from the CRC. If you are an employer or carrier relying upon a TPA to report, it is especially recommended that a QA process be in place to check the data entered by the TPA.

3. Ensure Reporting Platform is Accurately Reporting: Section 111 Reporting is electronically based and requires a data exchange with Medicare. Errors can and will occur in this data exchange. Ensure you have a trusted and reliable reporting agent to assist with accurate reporting to Medicare.

Finally, if any correspondence is received from the CRC or the U.S. Treasury Department claiming conditional payment recovery it must be acted upon immediately. Do not assume the letter was issued in error and will simply go away. If you do not believe you are liable for the conditional payments for which the CRC is claiming recovery, first confirm you have correctly reported ORM and then work with your MSP compliance partner to appropriately dispute the charges.

For questions stemming from this article please contact Dan Anders at (888) 331-4941 Daniel.anders@towermsa.com.

Second Chance with MSA Approval!: New CMS Policy Allows for Review of a New MSA Post a Prior Approval

July 12, 2017

While there may be no second chances in life, there is now a second chance for CMS review and approval of an MSA. On July 10, 2017, the Centers for Medicare and Medicaid Services (CMS) quietly rolled out a new policy allowing for a re-review of a previously approved Medicare Set-Aside which is between one and four years post-submission and for which there is a certain dollar amount change in projected future medical care since that time. The policy, which CMS calls an Amended Review, requires the previously approved MSA meet the following criteria:

Must have been originally submitted between one and four years from the current date.

Cannot have a previous request for an Amended Review.

Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount (The amount can be greater or less than the previously approved MSA amount).

CMS also notes that while you may change from brand-name to generic drug types, this change cannot be the sole reason for the Amended Review request. You must include additional changes such as changes in dosage and/or frequency, additional drugs or drugs no longer taken to qualify for the Amended Review.

A copy of the policy can be found in Section 12.4.3 of the revised Workers’ Compensation Medicare Set-Aside Portal (WCMSAP) User Guide found here.

Practical Implications of Amended Review Policy

Prior to this new policy, CMS, in almost all cases, would not review a new MSA proposal based upon post-submission medical records and pharmacy history once an MSA was approved. Consequently, if parties were unable to settle a case because of a high CMS MSA approval, but came back to the settlement table a couple years later when the claimant’s medical care had subsided, they were unable to obtain a revised MSA approval from CMS which would accurately reflect the claimant’s current and future course of medical care. Under this new policy, these cases which are within 1-4 years post the original MSA submission and meet the 10% or $10,000 (whichever is greater) criteria will have a second chance at CMS review and approval of an MSA.

Unanswered Questions Regarding Policy

As with many a new policy CMS left some unanswered questions.

It is unclear why CMS limited the Amended Review policy to submissions made within four years. We assume this is to limit the number of MSAs submitted for an Amended Review, but there remain cases older than four years which would benefit from this policy.

While we do not like to look a gift horse in the mouth, it seems unreasonable of CMS to preclude from its Amended Review policy requests which are based solely upon a brand name medication going generic or a claimant otherwise switching to a generic medication. This type of change often results in a significant reduction to the MSA.

The 10% or $10,000 change (whichever is greater) policy effectively means that there must be a $10,000 change to a previously approved MSA of $100,000 or less before it meets the criteria for an Amended Review. However, the example CMS provides in the User Guide inaccurately reflects a change on an $80,000 MSA of $8,000 as meeting the Amended Review criteria. We believe either the policy or the example is in error. We await CMS correcting this example or clarifying its policy.

Does My Case Fit the CMS Amended Review Criteria?

The Amended Review criteria opens the door to the settlement of some older cases where prior CMS approved MSA amounts no longer accurately reflect the claimant’s current and future course of medical care. Please feel free to reach out to Tower MSA Partners for an evaluation as to whether your previous CMS approved MSA may meet the Amended Review criteria. Tower MSA may be contacted at info@towermsa.com or (888) 331-4941.

Additional Changes in Updated WCMSAP User Guide

Besides the introduction of the Amended Review policy, CMS also made the following notable changes to the WCMSAP:

Claimants who are Medicare beneficiaries now have access to the WCMSAP through MyMedicare.gov. Accordingly, claimants are able to view MSA submissions and supporting documentation although will not be able to modify the documentation or otherwise take any actions on the submission which remain solely with the submitter of the MSA, i.e. Tower MSA.

For MSA submissions that have been closed for more than 12 months (Usually as a result of a non-response to a Development Letter), an entirely new MSA submission must be made with all documents generally required of a new MSA submission, i.e. two years of medical records. The new MSA submission will be assigned a new Case Control Number.

Not So Secret Tips for Quick and Successful MSA Submissions

June 8, 2017

It’s no secret quick and successful Medicare Set-Aside submissions to the Centers for Medicare and Medicaid Services (CMS) are driven by medical records which meet CMS requirements for review and approval of the MSA. At Tower MSA Partners we strive to work with our customers to prepare and submit to CMS MSAs meeting these requirements. By doing so, we limit the time for CMS to review the MSA and avoid unexpected MSA counter-highers which may jeopardize settlement of a workers’ compensation case or at least delay resolution.

Based upon the CMS WCMSA Reference Guide, which provides CMS’s official MSA review guidelines, and our years of experience in the submission of MSAs to CMS keep the following tips in mind during the process of preparing and submitting an MSA for review:

Provide medical records for the last two years of treatment, no matter how long ago those last two years were. CMS matches claim payment history to medical records.A date of service listed in the claim payment history without the relevant medical record submitted will usually result in a Development Letter requesting the record.

Example: If the last date of treatment occurred on 7/15/2016, then medical records are required back to 7/15/2014 or the date of injury, whichever is earlier.

If there are multiple body parts and/or dates of injury, then two years of medical records are required for each settling body part or condition.

Example: The MSA contains a 3/12/2016 date of injury to the right knee and a 6/7/1998 date of injury to the low back. Besides medical records for the right knee, medical records for the low back will also be required, even if treatment ended long ago.

The requirement for two years of medical records extends to medical records for treatment for which the WC carrier has not paid.

Example: A claim has been accepted and paid for quite some time, but as a result of a favorable IME report, the WC carrier denies payment for medical treatment after 11/1/2016. However, the claimant continues to treat for the claimed injury-related condition. CMS will require production of the medical records for post 11/1/2016 treatment.

Besides providing two years of medical records, if the claimant has not been treated by any doctor for any reason within the last two calendar years, then the last treating physician will usually need to provide a statement confirming last date of service and that all prescription medications, if any, were discontinued as of that date.The exception to this would be if at the time of the last date of service the physician provided a clear statement that the claimant was released from care with no ongoing treatment or medications

Example: The last treatment record is a date of service of 5/12/2015 at which time the claimant was noted to be on Tramadol and was to follow-up in six months. There is no evidence that the claimant followed-up. A statement will be required from this physician confirming last date of service and that medications were discontinued.

Open-ended or inconsistent treatment recommendations must be addressed with the treating physician.

Example: Last date of service on 3/7/2016 documents the claimant to be on one medication, Tramadol. However, a review of the prescription history through 5/31/2016 documents Tramadol and Norco. A statement from the treating physician is required to clarify prescription medication use.

Provide all relevant legal determinations which in anyway limit medical care.

Example: A judicial decision after a hearing on the merits finds the claimant’s request, supported by the treating physician’s recommendation, for a spinal cord stimulator, to not be reasonable or necessary to treat the claimant’s work-related condition.

Along with medical records, provide the prescription history for the medications paid on the claim.If for whatever reason the medical records document injury-related prescription medication use, but the medications were not paid on the claim, then a prescription history will need to be obtained from the claimant’s pharmacy.

Example: The treatment records document ongoing Oxycodone use which, based upon the prescription payment history, is not being paid on the claim. An itemization from the claimant’s personal pharmacy will be required documenting fills on Oxycodone.

Tower MSA Partners Physician Follow-up Service: At no additional cost to the customer, as part of preparing an MSA for submission to CMS, Tower MSA’s Physician Follow-up Team will reach out to a treating physician to confirm last date of service and clarify prescription medication use, whether continued or discontinued.

Other common questions regarding medical records and MSA submission to CMS:

Can depositions be submitted to CMS for review?

Yes, but in our experience, CMS will give more weight to opinions and statement made in physician reports documenting an examination of the claimant over opinions contained in a deposition.

Can an IME be submitted to CMS for review?

Yes, but in most cases CMS will rely upon the opinions and recommendations of the treating physician over that of an IME physician. In states where there are court-appointed IMEs (or AMEs in California), depending upon the facts of the case, CMS may rely upon those opinions and recommendations over those of the treating physician.

Following Tower MSA’s preparation of the MSA report, the claimant underwent additional treatment. Should Tower MSA review and submit these medical records to CMS?

Yes, there is often a lag time between the time the MSA is prepared and when it is submitted to CMS during which additional injury-related treatment occurs. While in general we advise updating an MSA report after six months, quite often there is additional medical care occurring in a timeframe of less than six months. We will review any recent medical records provided and determine if the MSA needs to be revised prior to submission to CMS.

Can the claimant provide a statement regarding last date of work-related medical care in lieu of a statement from the treating physician?

In situations where the treating physician no longer practices or is deceased, a statement from the claimant may be sufficient. However, if the claimant’s statement is insufficient then the claimant may need to produce either medical records or a statement from his current Primary Care Physician confirming no ongoing care for the work-related injury.

If you have any additional questions, please do not hesitate to contact Tower MSA Partners at info@towermsa.com or (888) 331-4941.

U.S. District Court Declares CMS Practice of Over-Inclusive Reimbursement Demands to be Unlawful, but Withholds Injunction

May 19, 2017

Earlier this year, Tower MSA summarized the California Insurance Guarantee Association’s (CIGA) case challenging the Centers for Medicare and Medicaid Service’s (CMS) practice of claiming conditional payment reimbursement on a charge which includes mixed diagnosis codes. Mixed diagnosis codes result in the charge including both treatment related and unrelated to the workers’ compensation injury. See Federal Court Holds Against Medicare Practice of Over-Inclusive Reimbursement Demands. In a further decision in this case issued on 5/3/2017 (Cali. Ins. Guar. Ass’n v. Price, No. 2:15-cv-01113-ODW (FFMx), 2017 U.S. Dist. Ct. LEXIS 67589), Judge Otis D. Wright, II, set-aside Medicare’s reimbursement claims against CIGA and issued a judicial declaration finding CMS’s practices pertaining to reimbursement unlawful, but stopped short of enjoining CMS from continuing these practices.

January Decision Finds in Favor of CIGA

The recent decision by the District Court follows an earlier 1/5/2017 decision from Judge Wright finding in favor in CIGA. Key findings were as follows:

First, the Court held that because Defendants simply withdrew the reimbursement demands without renouncing their allegedly unlawful policy, no part of CIGA’s claims were moot.

Second, insofar as CIGA sought simply to challenge CMS’s blanket practice of seeking reimbursement from primary plans for the full amount of a charge that contained uncovered diagnosis codes, CIGA met its burden simply by identifying codes that all parties agree are uncovered.

Third, the Court held that one statutory “item or service” does not as a matter of law equate to whatever medical procedure(s) are billed for in a single line-item charge on a payment summary form; rather, a statutory “item or service” simply refers to one indivisible medical item, device, medical supply, or service, regardless of how it is billed.

Fourth, in the event that a single line-item charge contains one covered “item or service” and one uncovered “item or service,” CIGA does not have a responsibility to make payment for the uncovered “item or service” just because it was lumped together with a covered “item or service.”

Finally, the Court also notes what it did not decide. The Court did not decide: (1) whether the cost of a single indivisible “item or service” must be apportioned among multiple diagnosis codes; or (2) whether each individual line-item charge in this lawsuit in fact consisted of multiple “items or services.”

As a result of the January decision CIGA was entitled to relief which the Court attempted, without success, to have CIGA and CMS resolve between themselves. Consequently, CIGA requested an order vacating CMS’s reimbursement claim of $119,122, a judicial declaration that CMS’s billing practice is unlawful and a permanent injection prohibiting CMS from sending future reimbursement demands to CIGA based on the unlawful billing practice.

An example of this practice is where a Conditional Payment Summary Form includes one line item representing multiple divisible treatments such as a physician visit where the services provided were for hypertension, a flu shot and low back pain. Only the low back pain is related to the work injury, but the charge listed on the Conditional Payment Summary Form is for all treatments, not just the low back pain.

Court Provides Judicial Declaration, but No Injunction Against CMS Practices

In response to CIGA’s request, the Court vacated CMS’s reimbursement claim of $119,122 and issued a judicial declaration that CMS’s billing practice is indeed unlawful. The Court refused though to enjoin CMS from these billing and reimbursement practices.

While the Court went into an extensive explanation as to why an injunction would not be warranted, in Judge Wright’s words it comes down to the following:

. . . the Court is not confident that it possesses a complete understanding of how determinations regarding the contents of a line-item charge are, can, or should be made, and the Court is not inclined to issue a broad judicial declaration that might ultimately require the parties to adopt an inefficient and unworkable reimbursement process going forward.

The Court went on to note that primary plans (carriers and employers) now have an administrative appeals process available to them (The five level appeals process put in place as a result of the SMART Act) to appeal reimbursement claims, rather than first seeking relief in federal court, as was done in this case.

While the Court declined to issue an injunction, it nonetheless agreed to set the case for a bench trial (9/12/2017 trial date set) to gather further facts, likely related to how a line-item charge may be separated into divisible treatments such that the injury-related treatment only can be claimed for reimbursement. Based upon a review of the evidence presented at trial, the Court will decide whether to issue an injunction.

Tower MSA Analysis: Court’s Decision Attempts to Balance the Interests of CIGA and CMS

The Court here is understandably trying to balance the interests of CIGA in not being forced to reimburse CMS for charges unrelated to the claimed workers’ compensation injury, against the interests of CMS in not having its reimbursement processes disrupted. If this case does go to trial, what Judge Wright will be looking for is a way to enjoin CMS from over-inclusive reimbursement demands without significantly impacting CMS’s ability to recover on legitimate claims.

Ultimately, this may prove difficult for the Court unless CMS steps up and agrees to work with its recovery contractors to better filter its claims for reimbursement such that one line item on a Conditional Payment Summary Form only includes treatment related to the claimed injury, workers’ compensation or otherwise. If CMS refuses to make these changes then the Court will either have to issue the injunction and force CMS’s hand or let the decision stand without the injunction. Even if an injunction is not issued, this case should be persuasive to other courts and hopefully CMS when it is cited in disputes and appeals of CMS reimbursement claims which contain mixed diagnosis codes.

Another question is whether depending upon the outcome of the trial, either party will appeal the District Court’s decision to the U.S. Court of Appeals. CIGA may appeal as a result of the lack of an injunction or CMS may appeal if an injunction is the result of the trial or based upon the judicial declaration regarding its billing and reimbursement practices. Tower MSA will continue to follow this important case and provide relevant updates.

Denied Claim Zero MSAs: Still Available, but Put Through the Wringer by CMS

April 28, 2017

In October 2016, CMS made an unannounced policy change which effectively eliminated the ability to obtain a Zero MSA approval from CMS based upon a complete denial of the claim, without a supporting judicial decision. After only a couple weeks, CMS withdrew this policy change and again allowed for approval of Zero MSAs based solely upon a complete claim denial. Nonetheless, these Zero MSAs reviews are placed through the proverbial wringer by CMS such that it is important to understand when a case meets the criteria for a Denied Claim Zero MSA and the documentation required to obtain CMS approval.

Denied Claim Zero MSA Approval Criteria: A Denied Claim Zero MSA (or Legal Zero MSA) approval from CMS is available when the claim has been completely denied with no medical or indemnity payments having been made with the exception of medical payments made for non-treatment purposes such as IMEs, case management and medical records copies (Note, in certain limited situations a Zero MSA may be approved with medical treatment payments having been made. Please consult with Tower MSA).

Importantly, CMS will not approve a Denied Claim Zero MSA if settlement is made final and/or a settlement payment or any medical or indemnity payment is made prior to CMS approval of the Zero MSA. A tentative or agreed to settlement is allowable, but please do not make the settlement final or make indemnity or medical payments prior to CMS approval of the Zero MSA.

If the case meets this criteria, then CMS has strict documentation requirements which must be adhered to or the Zero MSA will be rejected. Notably, since the policy change and rollback occurred in October 2016, CMS has added a requirement to provide claim reserve documentation. The requirement for claim reserve documentation, as well as all other supporting documentation, is detailed below.

Denied Claim Zero MSA documentation requirements: The following documents are required by CMS to obtain approval of a Zero MSA based upon a complete claim denial:

1. Claim Payment History

A claim payment history printout, even if blank, representing payments since the inception of the claim. All payments must be itemized.

Printout must be divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total listed. Print or run date listed on the printout.

Date range for listed payments – Must be since inception of claim.

If the Claim Payment History does not meet the above requirements, then the following rules apply:

Provide a copy of the available Claim Payment History with the following statement inserted, signed and dated in the document:
This document provides a complete representation of all payments made on the life of the claim (including medical of $0* and indemnity of $0)

Signed:
Date:
*If medical payments were made, provide the invoices or reports, i.e. IME report, associated with those payments and see below Financial Detail and Denial Letter requirement.

Letter providing an explanation why a Claim Payment History meeting CMS’s requirements is not available (See below Financial Detail and Denial Letter)

2. Claim Reserves

A Claim Reserves printout divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total.

Print or run date listed on the printout.

If there is a legal argument for claiming the reserve information is privileged then the legal argument, including citations to statute or case law must be provided along with a copy of a redacted (reserve information blacked out) version of the Claim Reserves printout.

If no reserves were placed on the claim, then a statement regarding the same.

3. Draft or final settlement documents and court orders or rulings or a statement that no such documents exist
(See below Financial Detail and Denial Letter).

4. First Report of Injury or a statement that no such document exists (See below Financial Detail and Denial Letter).

5. Financial Detail and Denial Letter – Tower MSA will provide draft letter upon request for submission of the Zero MSA to CMS

A statement indicating the claim was completely or fully denied with no medical or indemnity payments having been made.

If medical payments have been made for non-treatment purposes, i.e. IME, case management, medical records requests, then if the Claim Payment History does not properly explain the purpose of these payments, then provide an explanation for the payments.

If the available Claim Payment History does not meet the requirements under #1, then state that the carrier’s claim system does not have the ability to provide a Claim Payment History printout with the information requested by CMS, i.e. print date, subtotals for medical, indemnity and expenses.

If Claim Payment History did not meet the requirements under #1, then insert the requested information into the letter, i.e.list categories for medical, indemnity and expenses with subtotals for each category and a grand total.

If there are no draft or final settlement documents and no court orders or rulings, then a statement regarding the same.

If there is no First Report of Injury, then a statement regarding the same.

Letter must be placed on letterhead and hand signed.

6. Consent to Release form executed by claimant

While CMS places Zero MSA submissions based upon a complete denial through the wringer, these approvals remain available for workers’ compensation cases meeting the applicable criteria. Please contact Tower MSA Partners at referrals@towermsa.com or (888) 331-4941 to refer a claim meeting these requirements or for further consultation.

Why is CMS Requesting Medical Records Which Are Not in My File and How Do I Respond?

April 21, 2017

Tower MSA understands the frustration when following submission of a Workers’ Compensation Medicare Set-Aside (WCMSA) to the Centers for Medicare and Medicaid Services (CMS) shortly thereafter you receive a request for additional medical records and prescription history which you thought was already provided! Indeed, in most cases you have provided all the relevant documents from your claim file, but what CMS is requesting are medical records and prescription histories outside of your claim file.

So why then is CMS requesting documentation for treatment and medications not even paid on the claim? What if the claimant has not even treated for the work injury in the last two calendar years, paid on the claim or not? What is the proper response to these CMS medical records requests?

CMS Rules Require Submission of All Injury Related Medical Records

CMS does not allow the employer or carrier to limit medical records in the MSA submission solely to records the employer, carrier or MSA submitter deem related to the work injury. Accordingly, CMS requires the production of records as defined in Section 10.7 of the CMS WCMSA Reference Guide which states as follows:

All medical records from all treating physicians for the last two years of treatment related to the claim, even if the WC carrier has not paid for the treatment and even if the treatment was long ago (emphasis added). Remember, CMS needs medical records for the last two years of treatment, which may not be within the last two calendar years. . .

. . . If the claimant has not been treated by any doctor for any reason within the last two calendar years, CMS generally needs all treating physicians to state when the last two years of treatment for any reason occurred. The treating physicians must also state, in writing, the specific condition/injury the claimant was last treated for, and any related therapy.

In response to these rules, an employer or carrier may argue that if the treatment was not paid on the claim then it should not be considered “related.” However, CMS defines related as any treatment occurring to the alleged injured body part or condition notwithstanding who pays for the treatment. For example, a carrier employer accepts responsibility for a shoulder injury in February 2015, but following a favorable IME report disputes ongoing medical care starting in November 2016. Assuming the claimant continued medical care for the shoulder injury, CMS will want to review those records.

That is not to say the employer or carrier cannot dispute the causal relatedness of the treatment in these medical records. While the IME itself will be insufficient on its own to dispute the care, a judicial decision after a hearing on the merits or a statement from the treating physician in which it is found that the ongoing treatment is unrelated to the claimed work injury, will in most cases be sufficient to exclude such care from the MSA.

Response Scenarios to CMS Requests for Medical Records

Below are several common scenarios in which CMS will likely request additional medical records, whether in the claim file or not, and how anticipation of this request can be addressed prior to submission of the MSA to CMS.

Scenario #1 – Open-ended medical care without ongoing treatment

Client provides Tower MSA with the last two years of medical records which match up with the dates of service in the claim payment history. The last available medical record for a 2/12/2015 date of service reports the claimant is to follow-up in three months. There is no indication in the claim file that the claimant sought further medical care post 2/12/2015. Once it is verified that the claimant indeed sought no further work-related medical care then through Tower MSA’s Physician Follow-up service, we will obtain a statement from the doctor confirming the last date of service and that all prescription medications, if any, were discontinued.

Scenario #2 – Open-ended medical care with ongoing treatment

Client provides Tower MSA with the last two years of medical records which match up with the dates of serve in the claim payment history. The last available medical record from a 2/12/2015 date of service reports the claimant is to follow-up in three months. There is no indication in the claim file that the claimant sought further medical care for the work injury. Communication with the claimant reveals though that the claimant has been receiving treatment which is related to the work injury although not paid on the claim. The requested medical records and prescription history (likely from the claimant’s pharmacy) will need to be obtained and submitted, although relevant legal defenses to the inclusion of care in the MSA based upon these records may be submitted as well.

Scenario #3 – Availability of Medical-Legal Reports versus treatment records

While this can occur in any jurisdiction (usually in the form of IME reports), California claims tend to have a greater prevalence of medical records containing QME, PQME or AME reports versus required treatment records. While such reports may be relevant to the MSA, they cannot make-up the sole basis of support for the allocation. Besides these type of medical-legal reports, we must provide CMS the treatment records upon which these reports are based.

Scenario #4 – Medical Records Containing Inconsistencies

There are situations where Tower MSA is provided updated medical records and prescription history but the records contain inconsistencies. Submitting an MSA to CMS with inconsistencies will either result in CMS issuing a Development Letter requesting additional documentation or CMS including treatments or medications that are actually no longer necessary.

For example, in one case referred to Tower MSA the medical records documented the treating physician giving a sample and prescribing Pennsaid 1.5%, an extremely expensive medication. On the other hand, the prescription history showed the Pennsaid had never been filled. We alerted the client and through our Physician Follow-up service was able to obtain a report from the physician confirming that as the trial of Pennsaid did not effectively manage the pain, it had been discontinued – $970,355 in MSA savings

In another example of a matter referred to Tower MSA, the medical records from two years before documented mention of a spinal cord stimulator as a potential treatment option for the claimant. The more recent medical records made no mention of a spinal cord stimulator as a potential treatment option Through Tower MSA’s Physician Follow-up service we were able to obtain a statement from the current treating physician that the SCS no longer is part of the claimant’s treatment plan – $187,822 in MSA savings.

Tower MSA Partners Works with Our Clients to Effectively Address Medical Records Issues Prior to CMS Submission

Tower MSA Partners’ MSA development process is uniquely designed to identify issues which may result in unnecessary medical care being included in the MSA and avoidance of post MSA submission Development Letters requesting additional medical records and prescription histories:

Prior to MSA report completion: Prior to completion of the MSA report we review the claim payment history and request from the client any dates of service listed on the history for which medical records are missing from the file. This is insures we start with a complete record of all treatment paid on the claim.

Post MSA report completion: Upon delivery of the MSA report we will advise our client of additional medical records likely to be requested if the MSA is submitted to CMS along with inconsistencies within the medical records and prescription histories and other opportunities to limit the MSA allocation.

With client approval Tower MSA’s Physician Follow-up service will obtain supplemental statements from treating physician(s) confirming last date of service, discontinuation of medications, clarification of ongoing medication use and whether certain treatments remain options for the claimant, i.e. spinal cord stimulator. The result is an MSA which will be expeditiously approved by CMS and an allocation that accurately reflects the claimant’s future work-related medical care.

Tower’s Physician Follow-Up service is provided at no charge when initiated as part of the MSA and CMS submission process.

For further information on Tower MSA Partners services please contact us at (888) 331-4941.