Tag: CMS

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.

CMS Provides Another Piece of the Puzzle on Future LMSA Policy

March 2, 2017

While the Centers for Medicare and Medicaid Services (CMS) has yet to formally issue a policy regarding review of Liability Medicare Set-Asides (LMSAs), since a June 2016 announcement that it was considering expanding the WC MSA review process to liability and no-fault, CMS has nonetheless provided pieces of the puzzle which will ultimately make up a liability and no fault MSA review process. The most recent piece of the puzzle is an announcement by CMS that effective 10/1/2017, no Medicare payments are to be made to medical providers where a Liability Medicare Set-Aside (LMSA) or No-Fault Medicare Set-Aside (NFMSA) exists.

The announcement comes via the issuance of a CMS MLN Matters article directed to physicians and other medical providers submitting claims to Medicare Administrative Contractors (MACs) for services to Medicare beneficiaries. It directs these MACs to deny payment for medical care that is covered under an LMSA or NFMSA as identified in the Common Working File (CWF).

To clear up some of these technical terms, MACs process Medicare Part A and B payments to medical providers on behalf of Medicare. A Common Working File (CWF) is maintained by the CMS Benefits Coordination and Recovery Center (BCRC) and contains information on a particular claimant’s Medicare eligibility and, importantly, when Medicare should be considered secondary such that payment to a medical provider should be denied and directed instead to the primary plan.

BCRC presently keeps records of all WCMSAs that have been approved by CMS and funded through settlement (This is why CMS requires final settlement documents be submitted to BCRC post-settlement). The WCMSA funding information is placed in the CWF so that the MACs deny payment for medical care associated with the WCMSA until the WCMSA is exhausted. This directive from CMS makes this same process applicable to LMSAs and NFMSAs.

In response to this announcement, you would be correct in asking, how can CMS deny payment for medical care based upon an LMSA an NFMSA process that does not yet exist? Putting aside that some CMS Regional Offices have reviewed and approved LMSAs at their own discretion for quite some time, this does pose a very good question. CMS responds as follows:

CMS will establish two (2) new set-aside processes: a Liability Medicare Set-aside Arrangement (LMSA), and a No-Fault Medicare Set-aside Arrangement (NFMSA).

So CMS readily admits the new set-aside processes will be put in place at some point in the future. Such future date has already been tentatively set based upon CMS’s release, in December 2016, of its request for proposals for the new Workers Compensation Review Contractor which includes an optional provision to expand reviews to LMSAs and NFMSAs effective July 2018 (See prior blog post: CMS MSA Review Expansion to Liability Planned for 2018). Consequently, this directive to the MACs is implementing medical payment processing changes which will be required to be place once the LMSA/NFMSA review process is made available.

It is important to keep in mind that CMS has yet to release any guidance on such an expansion of the WCMSA review process to liability and no-fault and particularly how such a process would differ from that created for WC. Also note that CMS does not state that effective 10/1/2017 the MACs are to deny payment for all post-liability settlement injury-related medical care, rather, they are to “deny payment for items or services that should be paid from an LMSA or NFMSA fund.” The funds must exist for denial to occur. Accordingly, over 2017, as more pieces of the puzzle come together on CMS’s Liability and No-Fault MSA review policy, Tower MSA will provide further interpretation and guidance on what will be one of the most significant developments in MSAs since CMS formalized the WC MSA review process in 2001.

Federal Court Holds Against Medicare Practice of Over-Inclusive Reimbursement Demands

February 13, 2017

The California Insurance Guarantee Association (CIGA) has prevailed in its lawsuit (Cali. Ins. Guar. Ass’n v. Burwell, No. 2:15-cv-01113-ODW (FFMx), 2017 U.S. Dist. Ct. LEXIS 1681) against the Centers for Medicare and Medicaid Service (CMS) challenging the practice of over-inclusive reimbursement demands by CMS. As a consequence of this ruling from the U.S. District Court for the Central District of California, claimants and employers, have judicial support to dispute charges which contain mixed diagnosis codes, some related to the workers’ compensation injury and some unrelated, in CMS’s conditional payment demands.

A summary of CIGA’s challenge to CMS, CMS’s response to the claim and the Court’s decision is detailed below with a discussion on practical implications of the decision.

CIGA’s Claim Against Medicare

CIGA claimed that CMS’s practice of seeking reimbursement for the full amount of a medical charge despite the charge including mixed diagnosis codes, some related to the workers’ compensation injury and some unrelated, goes beyond CMS’s authority under the Medicare Secondary Payer Act.

By way of background, medical providers include ICD-10 diagnosis codes within billing records that are supposedly associated with the treatment provided. However, it is commonly known that medical providers, especially hospitals, may add any and all diagnoses for which a claimant reports a medical condition, even if such condition is not the subject of the treatment on the bill. For example, a claimant who has a low back injury and seeks treatment at a hospital for a cardiac condition may report on an intake form that he has ongoing low back pain. The hospital may list a low back diagnosis code on the medical bill even though the incurred medical treatment is solely related to the cardiac condition. This is not to say that there may also be situations where actual treatment was received for the work-related injury, but, even then, it may represent only a portion of the overall charge.

As evidence to support its claim, CIGA presented three examples of recovery demands with mixed diagnosis codes. In one demand the Medicare conditional payment charge included a diagnosis code connected to the work-related back and hip injury, but other diagnosis codes relating to diabetes, insulin use and bereavement. In these cases, CMS issued a formal demand letter seeking recovery for the complete charge for both related and unrelated conditions. CIGA disputed on the basis that the charges “did not fall ‘within the coverage of an insurance policy of the insolvent insurer’” under California law.

CMS’s Response

The Court rejected all of CMS defenses as detailed below.

CMS withdrawing the demand is not a sufficient basis to dismiss the case

At some point following the initiation of CIGA’s lawsuit CMS “recalculated” its demands resulting in CMS effectively withdrawing the demands that were the subject of this litigation. CMS claimed that as the demands were withdrawn the case should be dismissed. The court denied the dismissal noting “Indeed, given the timing of the withdrawals (i.e., immediately after a hearing in which the Court made clear that CMS’s practice would not withstand scrutiny), it seems obvious that this is simply a strategic maneuver designed to head off an adverse decision so that CMS can continue its practice in the future.”

CIGA identifying unrelated diagnosis codes is a sufficient basis to shift the burden to Medicare

CMS disputed CIGA’s assertion that identifying the non-work related diagnosis codes is sufficient to shift the burden to Medicare to prove otherwise. The Court disagreed and held that it is sufficient to shift the burden to Medicare to prover otherwise, and further, that CMS never challenged CIGA’s claims that the diagnosis codes were unrelated.

CMS’s claim that the term “item and service” refers to the charge and not the treatment is unsupported

The Medicare Secondary Payer Act provides “a primary plan . . . shall reimburse [Medicare] for any payment made . . . with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.” CMS regulations (42 CFR 1003.101) further define item or service “Any item, device, medical supply or service provided to a patient which is listed in an itemized claim for program payment or a request for payment . . . .”

CMS asserted the definition of “item or service” for which they are able to recover under their regulations refers to whatever (and how many) medical treatment(s) a provider lumps into a single charge. Not surprisingly, the Court found nothing under the statue nor the intent of Congress in writing the MSP Act to substantiate that “item or service” refers to the listed charge from the medical provider, rather than one medical treatment whether billed as a group with other treatments or listed singly.

CMS is bound by state law in determining whether the WC employer or carrier has responsibility to reimburse Medicare

CMS next argued that it is not bound by state law as state law is preempted under the MSP Act (Preemption refers to the principle that between federal and state law federal law trumps state law). The Court cited with approval a prior federal appellate court decision, Caldera vs. Ins. Co. of the State of Pa. 716 F.3d 861 (5th Cir. 2013) which addressed the question of whether CMS’s ability to recover is limited in anyway by state law. In Caldera the Court found “responsibility to make payment with respect to an item or service is generally a matter of state law.” Accepting then that CMS is held to state law in its ability to recovery, the judge in the present matter went on to cite several California state court decisions finding that a compensation carrier is not responsible for making payment on treatment unrelated to the workers’ compensation injury.

CMS is not entitled to deference in its interpretation of the MSP Act and regulations

The court rejected CMS claim of deference to its interpretation of the MSP Act and regulations since the Court found such an interpretation of CMS’s regulations actually supports CIGA and, further, its arguments conflict with CMS’s own MSP Manual which provides for medical providers to be reimbursed partially by a primary plan and partially by Medicare if work-related medical treatment is provided concurrently with non-work-related treatment.

Court Finds the Real Reason CMS Calculates in this Manner

The Court holds, “At bottom, it is quite clear that the real reason CMS calculates reimbursement demands in the manner that it does is simply because it is too difficult to do otherwise, not because that is what is required (or even permitted) by any statute, regulation, or policy manual.” According to the Court then, CMS must attempt to apportion the charge between covered and non-covered services. It is possible, as the court indicates, that CMS may find apportioning the charge unreasonable. The court further notes that if the charge is apportioned, it takes no position on how CMS should do so in terms of pro rata reimbursement, etc.

Practical Implications of Decision

Whether it is Medicare conditional payment recovery or Workers’ Compensation MSAs, CMS regularly asserts that it is not bound by state law in determining items or service for which it may seek recovery or to be included in the MSA. Further, CMS operates under an assumption that the courts will defer to its interpretation of the MSP Act and relevant regulations. At least in the Medicare conditional payment context, this decision completely refutes such assumptions. This is a well written decision which along with the holding in Caldera (mentioned above), is significant in finding that state law places limits on the extent of MSP conditional payment recovery. We applaud CIGA’s pursuit of this decision.

It should be noted that this is a U.S. District Court decision, not an appellate decision, thus it has limited precedential value for other cases addressing this same issue. Nonetheless, along with the Caldera case, which is an appellate decision, we now have two decisions which limit Medicare recovery. It is unclear at this point whether CMS will appeal the decision to the 9th Circuit Court of Appeals. A decision at that level would provide precedential value for all states within the 9th Circuit and would be on par with the Caldera case which was an appellate decision of the 5th Circuit.

The court does leave a door open for CMS in that CMS can determine whether it is unreasonable to separate a charge between related and unrelated. It is assumed though that CMS would have to provide evidence to support why it cannot reasonably separate the charges.

Tower MSA will utilize this important decision to support disputes of mixed diagnosis code conditional payment charges on behalf of our clients. Whether CMS will agree remains uncertain as this is a lower court decision and the decision itself still gives CMS the ability to determine whether it is reasonable to remove unrelated portions of a charge and how the remaining work-related amount of the charge should be apportioned. Tower MSA will continue to keep you apprised of any developments in this area of Medicare conditional payment recovery.

WorkersCompensation.com: Tower MSA Partners’ Rita Wilson Predicts CMS Re-Review Changes Will Help Payers

January 27, 2017

Tower MSA Partners CEO, Rita Wilson, was recently interviewed by WorkersCompensation.com following her participation in a January 24, 2017 “State of MSP” webinar presented by the National Alliance of Medicare Set-Aside Professionals (NAMSAP).

Workerscompensation.com asked Rita to comment on CMS’s December 21, 2016 announcement regarding its plans to update its WCMSA re-review process in 2017. This includes expansion of the process to previously approved MSAs where there has been a substantial change in the claimant’s medical condition and the case has not settled (For details see Tower MSA blog on the announcement: CMS Announces Plans for 2017 Expansion of MSA Re-Review Process & New Policy Regarding URs in MSAs)

Rita’s comments to WorkersCompensation.com follow:

“CMS will need to establish the parameters for re-review and define ‘substantial changes.’ We expect costly procedures such as surgeries and spinal cord stimulators to be included,” Wilson said. “A WCMSA involving patients who have weaned off expensive polypharmacy regimens could also qualify.”

“Tower’s workflow and decision-tree software application identifies recommended, not-yet-performed procedures and intervenes to address inappropriate treatment prior to submitting an MSA,” Wilson said, “But this could be a game-changer for payers with CMS-approved MSAs that they were unable to settle.”

The full article may be found here.

Removal of SSN from Medicare IDs Detailed in CMS Open Door Forum

January 23, 2017

On January 17, 2017, the Centers for Medicare and Medicaid Services (CMS) held a Special Open Door Forum to detail how the Social Security Number Removal Initiative (SSNRI) impacts the Medicare Secondary Payer (MSP) community. CMS’s explanation is summarized below with Tower MSA’s thoughts on the practical implications of this change.

SSNRI Explained

Presently, Medicare beneficiaries are assigned a Healthcare Insurance Claim Number (HICN) which generally includes either their or their spouses Social Security Number (SSN) followed by a letter, commonly an A or B. For the purpose of reducing identify theft involving SSNs, the Medicare Access and CHIP Reauthorization Act of 2015 included a provision requiring CMS to remove SSNs from all Medicare cards by April 2019.

In accordance with the Act, CMS announced that starting in April 2018 it will begin to issue what will be called Medicare Beneficiary Identifiers (MBIs) to replace the HICNs currently in use. MBIs will be 11-alphanumeric characters in length with letters only in uppercase. The MBIs will be assigned to approximately 60 million current Medicare beneficiaries and 90 million deceased/archived Medicare beneficiaries. CMS targets completion of the assignment of MBIs by April 2019.

CMS advised there will be significant outreach to Medicare beneficiaries, medical providers, and other stakeholders, such as the Medicare Secondary Payer community, prior to implementation of this change.

CMS has a dedicated website regarding the SSNRI which may be found here.

SSNRI Impact on MSP Compliance

In regard to Medicare Secondary Payer compliance processes, the MSP compliance community currently exchanges data with CMS through Section 111 Mandatory Insurer Reporting, the Medicare Secondary Payer Recovery Portal (MSPRP) and the Workers’ Compensation Medicare Set-Aside Portal (WCMSAP). CMS made the following statements concerning the SSNRI’s impact on this exchange of information:

• Fields presently identified as HICN will be retitled “Medicare ID.”
• As the HICN fields currently accept 11 characters there will be no expansion of these fields as a result of the implementation of MIBs.
• SSNs can continue to be used for querying whether a particular claimant is a Medicare beneficiary through the Section 111 Reporting process and for communication through the MSPRP and WCMSAP.
• Use of partial SSNs will continue to be permitted for querying Medicare eligibility.
• After April 2018 the CMS response to a Section 111 query will either provide the HICN or the MBI, depending upon whether the particular Medicare beneficiary has been issued an MBI.
• Outgoing documentation through the MSPRP or WCMSAP will include the HICN or MIB, depending upon what was most recently reported. For example, if an MSA is submitted to CMS for review through the WCMSAP and contains a HICN, then the response from CMS will include the HICN. On the other hand, if an MIB is submitted, then the CMS response will include the MIB.

Treasury Department to No Longer Include Medicare ID

Also announced during the forum is an impending change by the Treasury Department to no longer include the HICN (or the MIB when it becomes active) in its correspondence stemming from Medicare conditional payment recovery. Instead, the Treasury Department will only list the Case Recovery ID that has been assigned to the case by either the Benefits Coordination and Recovery Contractor (BCRC) or the Commercial Repayment Center (CRC). This change is expected to occur before the end of 2017.

Practical Implications

An important takeaway from CMS’s explanation of the SSNRI is that for MSP compliance purposes we can continue to use SSNs in communicating with CMS and its contractors. What we should recognize is that as of April 2018 besides SSNs, claimants may be providing MIBs rather than HICNs. Further, it should be recognized that the Section 111 query process may return an MIB, rather than an HICN, starting in April 2018.

Our Tower MSP Automation Suite will seamlessly transition to recognition and reporting of MBIs for Section 111 Reporting purposes starting in April 2019. We do recommend to our clients that they confirm their internal claims database will be fully capable of recognizing the MBIs when they become active for Medicare beneficiary claimants.

Finally, the Treasury Department’s removal of any Medicare beneficiary identifier from its conditional payment recovery correspondence may present some difficulty to workers’ compensation, liability and no-fault plans in identifying the particular claimant from which the demand stems. Tower MSA will work with our clients to address any uncertainty, but we also recommend to our clients that they work with us to actively resolve Medicare conditional payments on open and settling claims such that these demands never are referred to the Treasury Department.

If you have any questions regarding the SSNRI, please contact Tower MSA Partners Chief Compliance Officer, Dan Anders, at (847) 946-2880 or Daniel.anders@towermsa.com

CMS MSA Review Expansion to Liability Planned for 2018

January 4, 2017

We are not even a week into 2017, but already have news to share regarding Medicare’s planned expansion of its Workers’ Compensation MSA review process to liability in 2018. In its recently released Request for Proposal for the Workers Compensation Review Contractor (WCRC), the Centers for Medicare and Medicaid Services (CMS) includes an option allowing CMS to expand the responsibilities of the WCRC to review of Liability Medicare Set-Asides (LMSAs) and No-Fault Medicare Set-Asides (NFMSAs) effective July 1, 2018.

The CMS WCRC RFP Solicitation may be viewed here.

Background on CMS Review of MSAs

Since 2001 CMS has had in place an official voluntary review process for Worker’ Compensation Medicare Set-Asides (WCMSAs). A WCMSA, as CMS states, is a “financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury.” The purpose of the review then is “to independently price the future Medicare-covered medical services costs related to the WC injury, illness, and/or disease and to price the future Medicare covered prescription drug expenses related to the WC injury, illness and/or disease thereby taking Medicare’s payment interests appropriately into account.”

These WCMSA reviews were initially handled by the CMS Regional Offices spread throughout the country, but eventually transitioned to a centralized WCRC in 2005 (The CMS Regional Offices must still approve the review recommendation of the WCRC before it is released to the WCMSA submitter). CMS’s RFP solicitation for the new WCRC contract indicates the contract is to be awarded by June 30, 2017 with a contract term running for five years from July 1, 2017 to June 30, 2022.

Expectations for Liability MSA Reviews

Presently, CMS allows its 10 Regional Offices to accept voluntary requests for review of LMSAs at each office’s discretion. Some Regional Offices have consistently refused to review any LMSAs while other offices agree to review based upon criteria that seemingly changes over time and bears no indication that it is indeed the official policy of CMS. It appears then that just as it did in 2005 when CMS took the responsibility away from the Regional Offices for reviewing WCMSAs, CMS is now considering centralizing the process of reviewing LMSAs with a contractor, leaving the Regional Offices to only approve of the contractor’s recommendations.

Some may recall CMS launched a prior initiative to establish a formal policy for consideration of future medicals in liability settlements when it issued an Advanced Notice of Proposed Rulemaking in 2012. This initial effort was ultimately withdrawn by CMS in 2014. CMS’s new initiative began with this June 9, 2016 notice on the CMS website:

The Centers for Medicare and Medicaid Services (CMS) is considering expanding its voluntary Medicare Set-Aside Arrangements (MSA) amount review process to include the review of proposed liability insurance (including self-insurance) and no-fault insurance MSA amounts. CMS plans to work closely with the stakeholder community to identify how best to implement this potential expansion. CMS will provide future announcements of the proposal and expects to schedule town hall meetings later this year. Please continue to monitor CMS.gov for additional updates.

No town hall meetings were scheduled in 2016, however, based upon this RFP indicating LMSA reviews will not begin until at least July 1, 2018, CMS has given itself 18 months to develop and implement a formal LMSA review policy. In terms of how many liability settlements such a review process would impact, CMS seems uncertain. A Statement of Work attached to the RFP indicates “reviews could represent as much as 11,000 additional cases (based on all FY2015 NGHP demands), or as little as 800 additional cases annually, depending upon industry response.”

Tower MSA Takeaways

Over the past 15 years, starting with the formalized review of WCMSAs, continuing with the implementation of Section 111 Mandatory Insurer Reporting and recent stepped up efforts at denying injury-related medical care and recovery of conditional payments for medical care related to workers’ compensation, liability and no-fault claims, CMS has expanded its enforcement under the Medicare Secondary Payer Act. It is not surprising then that CMS’s next objective is formalizing a voluntary review process for LMSAs.

It has been our experience that when CMS does implement new policy and procedures it does take a deliberative approach evidenced by the at least 18-month timeframe signaled with this RFP to expand the MSA review process to liability and no-fault. Our expectation then is over the next 18 months or longer, CMS will provide additional announcements concerning the rules and procedures around expansion of the review process.

Tower MSA will be involved in these discussions and will keep you abreast of relevant developments. In the interim, there remain important obligations of parties to liability settlements and no-fault claims under the Medicare Secondary Payer Act. Rest assured that you can rely upon Tower MSA’s team of MSP compliance experts for consultation and expert guidance in liability and no-fault matters.

If you have any questions, please contact Tower MSA Partners, Chief Compliance Officer, Dan Anders, at (847) 946-2880 or daniel.anders@towermsa.com

CMS Technical Alert Confirms $750 Threshold for Liability, WC and No-Fault TPOC Reporting

December 13, 2016

In a 12/12/2016 Technical Alert, the Centers for Medicare and Medicaid Services (CMS) confirmed their prior policy announcements concerning the implementation of a $750 threshold for the reporting of Total Payment Obligation to the Claimant (TPOC) through the Section 111 Mandatory Insurer Reporting process. The $750 threshold for TPOC reporting in WC and No-Fault claims became effective 10/1/2016 and will become effective for liability claims effective 1/1/2017.

The mandatory reporting threshold requirements are now as follows:

Liability Insurance:
The mandatory reporting threshold for liability insurance (including self-insurance) Total Payment Obligation to the Claimant (TPOC) Amounts dated January 1, 2017 or after is changing from $1000 to $750. If the most recent TPOC Date is on or after January 1, 2017, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported.

Note, the liability threshold only applies to physical trauma-based liability insurance TPOC amounts. It is not applicable to TPOC amounts for alleged ingestion, implantation or exposure.

No-Fault Insurance:
The mandatory reporting threshold for no-fault insurance TPOC Amounts dated October 1, 2016 or after changed from $0 to $750. If the most recent TPOC Date is on or after October 1, 2016, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported.

Workers’ Compensation:
The mandatory reporting threshold for workers’ compensation TPOC Amounts dated October 1, 2016 or after changed from $300 to $750. If the most recent TPOC Date is on or after October 1, 2016, and the cumulative TPOC Amount is greater than $750, the TPOC(s) must be reported

CMS also announced that as of 1/1/2017 reporting of cumulative TPOC Amounts at or below the above defined reporting thresholds will be accepted, but are not required. In other words, submitting a TPOC amount below the mandatory reporting thresholds will no longer generate an error code by CMS.

The entire content of the official Alert from CMS can be found here.

If you have any questions regarding this Alert please contact Tower MSA Partners’ Chief Compliance Officer, Dan Anders, at Daniel.anders@towermsa.com or (847) 946-2880.

Changes Afoot For Medicare’s Conditional Payment Reimbursement Process

September 5, 2015

Expect potential changes in the Medicare’s conditional payment reimbursement process related to a workers’ compensation claim while the claim is still open, possibly more than once. That is among the changes stemming from a revised process to seek reimbursement of conditional payments made in a claim.

Beginning Oct. 5, Medicare is shifting responsibility for its recovery of conditional payments, where the Centers for Medicare and Medicaid Services (CMS) is pursuing recovery directly from a workers’ compensation entity, to the Commercial Repayment Center (CRC), away from the Benefits Coordination & Recovery Center (BCRC). The transition will result in several changes to the process.

Working with the experts at Tower MSA Partners means your claims professionals need not be experts on Medicare Secondary Payer (MSP) compliance or conditional payments. However, payers should be aware of the new process and take steps to reduce any challenges.

Medicare’s Conditional Payment Reimbursement Process: The Plan

The move by CMS for reimbursement recoveries from non-group health plans to the CRC follows CMS’ previous transition of group health plan recoveries. In addition to workers’ compensation entities, the change will also pertain to CMS’ recovery efforts directly from a liability insurer (including a self-insured entity) and no-fault insurer.

The transition will only affect new conditional payment recovery efforts. Actions pending prior to the transition will continue to be managed by the BCRC. The BCRC will also continue to handle recoveries when a beneficiary self reports that a workers’ compensation or other non-group health entity has primary payment responsibility for a claim where Medicare has made a conditional payment.

CRC will manage cases where the Responsible Reporting Entity (RRE) has reported Ongoing Responsibility for Medical (ORM), ORM Termination or Total Payment Obligation to Claimant (TPOC) on Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) and CMS has identified the primary debtor as the RRE.

Changes

One of the biggest changes is in the initial dispute process. Where the BCRC provides a Conditional Payment Letter (CPL), the CRC will issue a Conditional Payment Notice (CPN). Both are information — not requests for payments. Both identify the amount of the current conditional payment, provide a statement of reimbursement, and describe the manner for disputing the charges.

However, where the CPL has no specific date for a response, the CPN must be disputed within 30 days. Failure to do so will result in a demand letter or initial determination issued to the applicable plan for payment. While applicable plans do have appeal rights for recovery demand letters issued on or after April 28, 2015, the demand letter locks the applicable plan in place as the identified debtor. Also, interest accrues from the first day of a demand letter; however it will not be assessed if the debt is paid within 60 days.

The CRC will begin to issue CPNs starting October 25, from Section 111 data processed on or after October 5. A CPN is typically issued when an applicable plan reports under Section 111 that it has ORM or a responsibility for the claim as a primary payer, rather than when a settlement, judgment or award is issued.

To dispute the CPN, the applicable plan may contact the CRC in writing or through the Medicare Secondary Payer Recovery Portal (MSPRP). However, disputes submitted through the portal may only be on the basis of relatedness and in response to a CPN. All other disputes must be in writing.

Applicable plans will have one opportunity to file a dispute. If the CRC does not agree with the dispute, the conditional payments will be reflected in the demand letter.

What you can do

Workers’ compensation payers can help prepare for a smooth transition by taking the following actions:
• Carefully review all correspondence related to conditional payments to determine if they are generated by the CRC or BCRC.
• Develop and implement a process for the timely review of CPNs as well as CPLs.
• Make sure disputes of CPNs are properly filed within the 30-day time limit.
• Ensure Section 111 reporting information is updated.
• Make sure the ORM process is working properly.

More specific details will follow as we track the rollout of this process…. Stay Tuned!

Managing Chronic Pain in Older Adults

April 8, 2014

According to the ACPA (American Chronic Pain Association) Resource Guide to Chronic Pain Management, “persistent or chronic pain is prevalent in older adults.”

“Nearly one third of all prescribed medications are for patients over the age of 65 years.   More than thirty percent of hospital admissions among the elderly may be linked to an adverse drug related event or toxic effect from opioids and sedatives.  Unfortunately, many adverse drug effects in older adults are overlooked as age-related changes (general weakness, dizziness, and upset stomach) when in fact the patient is experiencing a medication-related problem.  In addition, some older individuals may be more sensitive to medications, more likely to experience side effects, and more likely to be using multiple drugs with the associated risk of interactions between the drugs.”

Workers’ Comp Implications

For those who manage workers’ compensation claims, these statistics should highlight the importance of a consistently executed decision making paradigm when authorizing prescription medications for older patients. 

  • Before approving a new pain medication for an elderly injured worker, confirm that the initial dose is being prescribed at the lowest possible strength and frequency. 

  • When increases are requested, approve only those changes to strength and frequency that are adjusted slowly to optimize pain relief. 

  • When possible, confirm that the patient is monitoring and managing his / her own side effects.

When dealing with less dangerous treatment options for injuries in the elderly population, potential treatment options include:

  • Use of multiple drugs together – Careful  use of multiple drugs is potentially advantageous as the combination of smaller doses of more than one medication may minimize the dose-limiting adverse effects of using a particular single drug.

  • Alternatives to pharmacologic treatment – As an alternative to prescription drugs, physical rehabilitation and other interventional therapies, including targeted injections and acupuncture, can be helpful to minimize side-effects and maximize physical function with pain relief

Triggers For Potential Concern

Pain management in the elderly is a unique challenge.  Beyond the normal concerns of addiction and overuse, those who authorize treatment in a workers’ compensation claim for an older worker must also compare the potential dangers associated with the side effects of the medication against its promised value.  Triggers that may warrant intervention for an older injured worker include:

  • Opioid treatment that continues for more than 90 days post injury / surgery

  • An increase in the strength or frequency of an opioid prescribed more than 90 days post injury / surgery

  • A request to change from an orthopedic or other specialist to a pain management specialist more than 90 days post injury/surgery

  • A decrease in opioid drug use followed by a request for a new treating physician

  • The appearance of a long acting opioid medication following continued use and/or an increase in dosage of a short acting opioid more than 60 months post injury

Identify, Intervene and Remain Involved

By peeling back the onion one layer at a time, questions can be raised, physicians can be challenged and evidence based treatment guidelines can be used to confront the status quo.   The first step is to ask your workers’ comp PBM to identify claims that meet your triggers.   Once identified, intervene with the treating physician either directly, or through a formal peer review.  Once intervention is complete, remain involved until changes are complete.  

When preparing for settlement, it’s critical to work with an MSA partner who will serve as gatekeeper to identify the same triggers and  intercept problem claims before the MSA is prepared.  Working hand in hand, positive outcomes can be achieved for the elderly.   The process is simple.  Consistent execution is the key.

For more information on medical and pharmacological issues related to pain management in the elderly population, I encourage you to review the publications made available by the American Geriatrics Society  (http://www.americangeritrics.org).  For questions related to pain management issues related to Medicare Set Asides, email us at info@towermsa.com.

 

Centers for Medicare and Medicaid Services (CMS) Advanced Notice of Proposed Rule Making

June 18, 2012

This advance notice of proposed rulemaking solicits comment on standardized options CMS has considered making available to beneficiaries and their representatives to clarify how they can meet their obligations to protect Medicare’s interest with respect to Medicare Secondary Payer (MSP) claims involving automobile and liability insurance (including self-insurance), no-fault insurance, and workers’ compensation when future medical care is claimed or the settlement, judgment, award, or other payment releases (or has the effect of releasing) claims for future medical care.

To be considered, comments regarding CMS-6047-ANPRM must be recieved on or before 5pm on August 14, 2012.

The primary purpose of this ANPRM is to respond to affected parties’ requests for guidance on “future medicals” MSP obligations, specifically, how  individuals / beneficiaries can satisfy those obligations effectively and efficiently.   Currently, individuals involved in certain workers’ compensation situations are able to use Medicare’s formal, yet voluntary, Medicare Set-Aside Arrangement (MSA) review process in order to determine if a proposed set-aside amount is sufficient to meet their MSP obligations related to “future medicals.” To date, Medicare has not established a similar process for  individuals/beneficiaries to use to meet their MSP obligations with respect to  future medicals” in liability insurance (including self-insurance) situations. CMS is soliciting comment on whether and how Medicare should implement such a similar process in liability insurance situations, as well as comment on the proposed definitions and additional options outlined later in this section. CMS is further soliciting suggestions on options they have not included later in  this section. In its own words, CMS is most interested in the feasibility and usability of the outlined options and whether implementation of these options would provide affected parties with sufficient guidance.

Medicare is considering the options listed below in an effort to develop an efficient and effective means for addressing “future medicals.” Options 1 through 4 would be available to Medicare beneficiaries as well as to individuals who are not yet beneficiaries. Options 5 through 7 would be available to beneficiaries only. CMS is requesting comment on the feasibility and usability of all of the options, and also requests proposals for additional options for consideration.

The seven (7) proposed options include the following:

Option 1. The individual/beneficiarypays for all related future medical care until his/her settlement is exhausted and documents it accordingly.

The beneficiary may choose to govern his/her use of his/her settlement proceeds himself/herself. Under this option, he/she would be required to pay for all related care out of his/her settlement proceeds, until those proceeds are appropriately exhausted. As a routine matter, Medicare would not review documentation in conjunction with this option, but may occasionally request documentation from beneficiaries selected at random as part of Medicare’s program integrity efforts.

Option 2. Medicare would not pursue “future medicals” if the individual/beneficiary’s case fits all of the conditions under either of the following headings:

a. The amount of liability insurance (including self-insurance) “settlement” is a defined amount or less and the following criteria are met:

  • The accident, incident, illness, or injury occurred one year or more before the date of “settlement;”
  • The underlying claim did not involve a chronic illness/condition or major trauma;
  • The beneficiary does not receive additional “settlements;” andShow citation box
  • There is no corresponding workers’ compensation or no-fault insurance claim.

b.  The amount of liability insurance (including self-insurance) “settlement” is a defined amountor less and all of the following criteria are met:

  • The individual is not a beneficiary as of the date of “settlement;”
  • The individual does not expect to become a beneficiary within 30 months of the date of “settlement;”
  • The underlying claim did not involve a chronic illness/condition or major trauma;
  • The beneficiary does not receive additional “settlements;” and
  • There is no corresponding workers’ compensation or no-fault insurance claim.

Option 3. The individual/beneficiary acquires/provides an attestation regarding the Date of Care Completion from his/her treating physician.

a. Before Settlement—When the individual/beneficiary obtains a physician attestation regarding the Date of Care Completion from his or her treating physician, and the Date of Care Completion is before the “settlement,” Medicare’s recovery claim would be limited to conditional payments it made for Medicare covered and otherwise reimbursable items and services provided from the Date of Incident through and including the Date of Care Completion. As a result, Medicare’s interest with respect to “future medicals” would be satisfied. The physician must attest to the Date of Care Completion and attest that the individual/beneficiary would not require additional care related to his/her “settlement.”

b. After Settlement—When the individual/beneficiary obtains a physician attestation from his or her treating physician after settlement regarding the Date of Care Completion, Medicare would pursue recovery for related conditional payments it made from the date of incident through and including the date of “settlement.” Further, Medicare’s interest with respect to future medical care would be limited to Medicare covered and otherwise reimbursable items and/or services provided from the date of “settlement” through and including the Date of Care Completion. The physician must attest to the Date of Care Completion and attest that the individual/beneficiary would not require additional care related to his/her “settlement.” CMS requests comment on the efficacy and feasibility of this option.

Option 4. The Individual/Beneficiary Submits Proposed Medicare Set-Aside Arrangement (MSA) Amounts for CMS’ Review and Obtains Approval.

Currently, CMS has a formal process to review proposed MSA amounts in certain workers’ compensation situations. Recently CMS has received a high volume of requests for official review of proposed liability insurance (including self-insurance) MSA amounts. This has prompted them to consider whether to implement a formal review process for proposed liability insurance (including self-insurance) MSA amounts. For more information related to workers’ compensation MSA process, please visit http://www.cms.hhs.gov/Medicare/Coordination-of-Benefits/WorkersCompAgencyServices/wcsetaside.html.  CMS specifically solicits comment on how a liability MSA amount review process could be structured, including whether it should be the same as or similar to the process used in the workers’ compensation arena, whether review thresholds should be imposed, etc.

Option 5. The beneficiary participates in one of Medicare’s recovery options.

Recently, CMS implemented three options with respect to resolving Medicare’s recovery claim in more streamlined and efficient manners. Before a demand letter is issued, the beneficiary or his/her representative may participate in one of three recovery options, which allows the beneficiary to obtain Medicare’s final conditional payment amount before settlement. The three recovery options are as follows:

  • $300 Threshold—If a beneficiary alleges a physical trauma-based injury, obtains a liability insurance (including self-insurance) “settlement” of $300 or less, and does not receive or expect to receive additional “settlements” related to the incident, Medicare will not pursue recovery against that particular “settlement.”
  • Fixed Payment Option—When a beneficiary alleges a physical trauma-based injury, obtains a liability insurance (including self-insurance) “settlement” of $5,000 or less, and does not receive or expect to receive additional “settlements” related to the incident, the beneficiary may elect to resolve Medicare’s recovery claim by paying 25 percent of the gross “settlement” amount.
  • Self-Calculated Conditional Payment Option—When a beneficiary alleges a physical trauma-based injury that occurred at least 6 months prior to electing the option, anticipates obtaining a liability insurance (including self-insurance) “settlement” of $25,000 or less, demonstrates that care has been completed, and has not received nor expects to receive additional “settlements” related to the incident, the beneficiary may self-calculate Medicare’s recovery claim. Medicare would review the beneficiary’s self-calculated amount and provide confirmation of Medicare’s final conditional payment amount.

Each of the options is employed in such a way that Medicare’s interest with respect to future medicals is, in effect, satisfied for the specified “settlement.” Therefore, when a beneficiary participates in any one of these recovery options, the beneficiary has also met his/her obligation with respect to future medicals. CMS solicits comment on proposed expansions of these options and the justification for that proposed expansion, as well as any suggestions about how to improve the three options we recently implemented.

Option 6. The Beneficiary Makes an Upfront Payment.

CMS is currently considering two variations of an “upfront payment option.”

a. If Ongoing Responsibility For Medicals was imposed, demonstrated or accepted and medicals are calculated through the life of the beneficiary or the life of the injury.

If ongoing responsibility for medicals was imposed, demonstrated or accepted from the date of “settlement” through the life of the beneficiary or life of the injury, we may review and approve a proposed amount to be paid as an upfront lump sum payment for the full amount of the calculated cost for all related future medical care. This option would generally apply in workers’ compensation, no-fault insurance situations or when life-time medicals are imposed by law. In effect, this option may be used in place of administering a MSA if we have reviewed and approved a proposed MSA amount. CMS solicits comment on how to develop this process, the efficacy of it, and whether it would be utilized.

b. If Ongoing Responsibility for Medicals was Not Imposed, Demonstrated or Accepted.

If a beneficiary obtains a “settlement,” our general rule stated previously applies to the “settlement,” and ongoing responsibility for medicals has not been imposed on, demonstrated by or accepted by the defendant, the beneficiary may elect to make an upfront payment to Medicare in the amount of a specified percentage of “beneficiary proceeds.” This option would most often apply in liability insurance (including self-insurance situations, primarily due to policy caps. For the purposes of this option, the term “beneficiary proceeds” would be calculated by subtracting from the total “settlement” amount attorney fees and procurement costs borne by the beneficiary, Medicare’s demand amount (for conditional payments made by Medicare), and certain additional medical expenses the beneficiary paid out of pocket. Such additional medical expenses are specifically limited to items and services listed in 26 U.S.C. 213(d)(1)(A) through (C) and 26 U.S.C. 213(d)(2). The calculation of beneficiary proceeds does not include medical expenses paid by, or that are the responsibility of, a source other than the beneficiary.  CMS specifically solicits comment on how to develop this process, its efficacy, and whether it would be utilized. CMS further requests comment on the calculation of beneficiary proceeds, the appropriate percentage(s) to be used, and how the percentage(s) is/are justified.Show citation box

Option 7. The Beneficiary Obtains a Compromise or Waiver of Recovery.

If the beneficiary obtains either a compromise or a waiver of recovery, Medicare would have the discretion to not pursue future medicals related to the specific “settlement” where the compromise or waiver of recovery was granted. If the beneficiary obtains additional “settlements,” Medicare would review the conditional payments it made and adjust its claim for past and future medicals accordingly. CMS specifically solicits comment on whether this approach is practical and usable, as it relates to “future medicals.”

We encourage you to read and evaluate each of the seven options as they relate to your business and settlement objectives and email us at info@towermsa.com with questions, feedback and suggestions.  We will continue our due diligence as well, and will publish our thoughts as to the pro’s and con’s of each option.  As noted, we have 60 days to respond with comments and recommendations.

Click here for the complete version of CMS-6047-ANPRM.