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 or (888) 331-4941.

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.

Is The Tidal Wave of CMS Development Letters Behind Us?

May 14, 2014

In case you didn’t hear us shouting from the rooftop, Tower MSA Partners (as well as other companies across the MSA industry) was notified Tuesday, May 13, 2014 that full MSA approval had been given for approximately 100 cases, more than 50 of which were in various stages of development request processing.  While this was certainly a welcomed announcement, I believe strongly that it was not an arbitrary decision by CMS, nor was it achieved by a few large companies.  I see this accomplishment as the result of the combined and focused efforts of many in the MSP compliance industry.  

Where Do I Begin?

As many of our clients have become painfully aware, development requests have been a major issue for Tower, as well as every carrier, employer and MSA provider in our industry, since late 2013.  In early January, I discussed this new trend via a blog article ( ) to explain what we were seeing as a company.  In follow up to the article, I took this information to my industry peers, encouraging their participation to track the trend through my involvement with the Data and Development Committee of NAMSAP (National Alliance of MSA Professionals).   

An Industry Moved to Action

Data capture of development requests began in January with analytics by the DDC for the next 90 days.  At the same time, the NAMSAP Board of Directors asked that I prepare an article to be published in NAMSAP’s national newsletter, and also to help author a letter to be submitted to CMS on behalf of the NAMSAP BOD.  The article’s intent was to communicate the source and impact of development letters among our membership, and to encourage readers to share their experiences in the form of actual data.  The letter to CMS presented aggregated, experiential data to demonstrate the effects of the WCRC’s actions, and to communicate the settlement obstacles being created by this process (not the least of which was the request for HIPAA protected primary care physician medical records). 

Communication Through Data Analytics

Through the efforts of the DDC to summarize the data obtained from multiple companies across our industry, the letter submitted by NAMSAP’s BOD to CMS provided clear evidence of the impact of the actions of the WCRC on settlement initiatives.  We then requested that CMS work with our industry to reestablish a strategy that included only ‘injury related’ medical and pharmacy history, and followed the published standards defined in the March 2013, November 2013 and February 2014 editions of CMS’s own WCMSA Reference Guide as their only criteria to ensure that Medicare’s interests are adequately protected.   

While we cannot confirm that CMS’s recent actions were in response to the initiatives pursued by NAMSAP, or through the efforts of a single company, we certainly believe industry involvement for the benefit of all stakeholders was the right course of action and are thrilled with the outcome.  We are pleased to have been an active participant in this process.

Lessons Learned?

As the MSP compliance partner for employers, TPAs and carriers, our primary responsibility is to prepare and submit Medicare Set Asides that to the best of our knowledge, ability and expertise ensure that Medicare’s interests are adequately protected when settling future medical claims.  From a professional ethics perspective, this means doing what is reasonable on behalf of the claimant.  For Tower, we describe this as, “helping clients balance care, cost and compliance when settling claims that involve Medicare beneficiaries”.       

One of our client’s website taglines reads as follows, “We strive to ensure that injured workers get the right care at the right time—and we focus on getting it done the right way. It’s our commitment.”  I’ve read this quote many times and strongly believe this is the goal of most in our industry….. do what is reasonable.  And in the end, regardless of CMS submission and approval, I believe this will provide adequate evidence of our efforts to protect Medicare.

Looking ahead, we must now prepare our team and our clients for the next wave of CMS submissions.  How do the experiences of the past 6 months impact our internal processes going forward?  Was the development letter barrage truly a ‘ghost hunt’, or is there something to be learned from the WCRC’s actions?   This will be the focus of our attention in the coming weeks.