Medicare Secondary Payer Archives

CMS Section 111 Penalties Rule Focuses on Untimely Reporting

October 12, 2023

Stamp icons representing regulatory enforcement of Section 111 reporting by CMS.

On October 11, 2023, CMS published a final rule on the imposition of Civil Monetary Penalties for failure to comply with the Section 111 Mandatory Insurer Reporting requirements. The rule’s focus and the sole reason for penalties will be untimely reporting. Even if a Responsible Reporting Entity (RRE) reports untimely, it may only be subject to penalties if that claim is identified through a randomized quarterly audit process.

Please see a full Q&A below. We will be sending an invitation for a special webinar on Section 111 penalties shortly!

Note, while the final rule encompasses both Group Health Plans (GHPs) and Non-Group Health Plans (NGHPs), this article is specific to NGHPs.

Under what circumstances can CMS impose penalties?

Per CMS:

. . . we have determined that we will only impose penalties where the initial report was not received in a timely manner. Penalties will not be imposed on any other basis, such as in relation to the quality of reporting. Timeliness is determined by comparing the date a record is submitted and accepted against the date CMS should have received the record. The date CMS should receive a record is determined by the effective date of coverage or the date of settlement (or settlement funding date if the funding of the settlement is delayed) plus 1 year (365 days).

CMS considers the “initial report” to be the reporting on Ongoing Responsibility for Medicals (ORM) or, if ORM was not previously reported, the reporting of Total Payment Obligation to the Claimant (TPOC), namely the settlement, judgment, award, or other payment. Importantly, CMS expressly indicated in these comments that a failure to report ORM termination will not subject the RRE to penalties:

In the final rule, based on stakeholder concerns and submitted comments, CMS has chosen to focus its definition of noncompliance solely on those situations where an entity has failed to provide its initial report of primary payment responsibility in a timely manner. That means that untimely termination of ORM coverage records would not be considered eligible for a civil money penalty under this rule.

On the surface, even this more narrowly tailored rule could subject many claims to penalties. However, CMS is implementing a randomized audit process that will only review a small portion of the thousands of reported claims it receives. Per CMS:

CMS has determined that, given the time and resources necessary to accurately and thoroughly evaluate the accuracy of any submitted record, it would be possible to audit a total of 1,000 records per calendar year across all RRE submissions, divided evenly among each calendar quarter (250 individual beneficiary records per quarter).

- CMS will evaluate a proportionate number of GHP and NGHP records based on the pro-rata count of recently added records for both types of coverage over the calendar quarter under evaluation. For example, if over the calendar quarter being evaluated, CMS received 600,000 GHP records and 400,000 NGHP records for a total of 1,000,000 recently added beneficiary records, then 60 percent of the 250 records audited for that quarter would be GHP records, and 40 percent would be NGHP records.
- At the end of each calendar quarter, CMS will randomly select the indicated number of records and analyze each selected record to determine if it is in compliance with the reporting requirements as required by statute and defined herein.

Accordingly, to be chosen for a penalty a claim would need to both be reported untimely and identified through this randomized audit. As CMS indicated in its comments, it expects this type of audit to pick up larger reporting entities.

How will the RRE be notified of the penalty?

Once a claim has been identified for a penalty there is an informal notice process, per CMS:

We intend to communicate with the entity informally before issuing formal notice regarding a CMP. The informal (that is, prior to formal enforcement actions) written “pre-notice” process will allow the RRE the opportunity to present mitigating evidence for CMS review prior to the imposition of a CMP. The RRE will have 30 calendar days to respond with mitigating information before the issuance of a formal written notice in accordance with 42 CFR 402.7.

Common to all such instances where informal notice will be given is the intention to give the RRE an opportunity to clarify, mitigate, or explain any errors that were the result of a technical issue or due to an error or system issue caused by CMS or its contractors. It would be impractical and counter to the spirit of the informal notice process to regulate or enumerate all circumstances in which mitigating information could be provided or what that information should convey. As such, any mitigating factors or circumstances are welcomed, and a dialogue is encouraged in an attempt to find solutions that are short of imposing a CMP. We believe it is in the best interests of all RREs to leave the informal notice process open to any reasonable submission of mitigating factors so that we are free to entertain all such documentation without strict limits on what is, or is not, acceptable.

In many circumstances, the RRE may have a reasonable explanation for the untimely reporting. Because of the 30-day timeline, RREs must be prepared to react quickly to these informal notices by investigating and responding within the required timeframe.

If the RRE fails to respond to the informal notice or CMS does not accept the explanation for why the report was untimely, then CMS will issue a formal notice.

Is there an appeals process?

Yes, per CMS:

The recipient will have the right to request a hearing with an Administrative Law Judge (ALJ) within 60 calendar days of receipt. Any party may appeal the initial decision of the ALJ to the Departmental Appeals Board (DAB) within 30 calendar days. The DAB’s decision becomes binding 60 calendar days following service of the DAB’s decision, absent petition for judicial review.

If a penalty is imposed, how will the dollar amount be calculated? Is there a maximum penalty?

CMS has developed a tiered approach to penalties, which provides:

Because we have the statutory authority to adjust the amounts of penalties imposed on NGHP RREs, a tiered approach and cap on the total amount of penalties applicable to such RREs are being finalized in this rule. As explained previously, the statute does not permit us to extend this approach to GHP RREs. For any record selected via the random audit process described above where the NGHP RRE submitted the information more than 1 year after the date of settlement, judgment, award, or other payment (including the effective date of the assumption of ongoing payment responsibility for medical care); the daily penalty will be—

- $250, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 1 year or more, but less than 2 years after, the required reporting date;

- $500, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 2 years or more, but less than 3 years after, the required reporting date; or

- $1,000, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 3 years or more after the required reporting date.

Additionally, the total penalty for any one instance of noncompliance by an NGHP RRE for a given record identified by CMS will be no greater than $365,000 (as adjusted annually under 45 CFR part 102).

Are there any safe harbors from penalties?

Per CMS:

First, any untimely reporting that is the result of a technical or system issue outside of the control of the RRE, or that is the result of an error caused by CMS or one of its contractors would not be considered noncompliance for purposes of this rule.

Second, any untimely reporting by an NGHP that is the result of a failure to acquire all necessary reporting information due to a lack of cooperation by the beneficiary will not lead to a CMP provided that certain standards are met.

CMS defines a safe harbor based on good faith efforts to obtain claimant information for reporting as follows:

If an NGHP entity fails to report timely because the NGHP entity was unable to obtain information necessary for reporting from the reportable individual, including an individual’s last name, first name, date of birth, gender, MBI, or SSN (or the last 5 digits of the SSN), and the responsible applicable plan has made and maintained records of its good faith effort to obtain this information by taking all of the following steps:

- The NGHP has communicated the need for this information to the individual and his or her attorney or other representative (if applicable) and requested the information from the individual and his or her attorney or other representative at least twice by mail and at least once by phone or other means of contact such as electronic mail in the absence of a response to the mailings.

- The NGHP certifies that it has not received a response, or has received a response in writing that the individual will not provide his or her MBI or SSN (or last 5 digits of his or her SSN).

- The NGHP has documented its efforts to obtain the missing information, such as the MBI or SSN (or the last 5 digits of the SSN) and the reason for the failure to collect this information.

The NGHP entity should maintain records of these good faith efforts (such as dates and types of communications with the individual) in order to be produced as mitigating evidence should CMS contemplate the imposition of a CMP. Such records must be maintained for a period of 5 years. The current OMB control number assigned to this information collection effort, as required under the Paperwork Reduction Act, is 0938-1074.

Is there a statute of limitations on penalties?

Yes, per CMS:

We agree and will apply the 5-year statute of limitations as required by 28 U.S.C. 2462. Under 28 U.S.C. 2462, we may only impose a CMP within 5 years from the date when the noncompliance occurred.

The five-year limitation begins to run as of the date the untimely report is made to CMS.

When does the rule become effective?

The rule becomes effective as of December 11, 2023.

Will the rule be retroactive?

No, per CMS:

CMPs will only be imposed on instances of noncompliance based on those settlement dates, coverage effective dates, or other operative dates that occur after the effective date of this regulation and as such, there will be no instances of inadvertent or de facto retroactivity of CMPs.

Since the rule effective date is December 11, 2023, CMS can consider penalties on untimely reported claims on or after this date. This means that if the untimely ORM and TPOC date was December 11, 2023, or later, it may be subject to penalties. Untimely, pre-December 11, 2023, ORM and TPOC dates will not be subject to penalties.

Additionally, CMS has indicated that penalties will not be issued until one year after the final rule’s publication, namely October 11, 2024.

How does the final rule differ from the proposed rule?

The proposed rule contained two other issues that could result in penalties. These were RREs reporting ORM and later reporting contradictory diagnosis codes and exceeding error tolerance thresholds. The final rule consists solely of penalties for untimely reporting.

This means that reporting errors, such as incorrect diagnosis code reporting, will not result in Section 111 reporting penalties (although it can still result in inappropriate Medicare conditional payment demands). Further, when the RRE corrects this data, it will not be penalized for doing so.

What steps must an RRE take to avoid penalties?

Simply put, reporting of ORM and/or TPOC must be timely. When the criteria are met for a claim to be reported, it should be reported during the next quarterly reporting period.

Suppose the RRE has difficulty obtaining identifying information to determine whether a claimant is a Medicare beneficiary. In that case, those efforts should be in accordance with the good faith effort rules described in the safe harbor section.

Tower’s Section 111 reporting platform and management dashboard provides our reporting partners the tools necessary to identify Medicare-eligible claimants. Once eligibility is confirmed it is critical to use this information to report acceptance of ORM and/or TPOC. Tower MSA Partners stands ready to assist you with your questions and to provide necessary reports and overall guidance to ensure compliance.

Contact us if you are concerned that your current reporting platform may not protect you from penalties. An audit of your current Section 111 reporting data often reveals gaps in reporting which may lead to penalties.

Tower’s Chief Compliance Officer, Dan Anders, can be reached at daniel.anders@towermsa.com.

Section 111 Reporting Penalties Rule Released

October 10, 2023

Tower MSA Partners analyzes CMS final Section 111 penalties rule and compliance requirements for RREs.

The long-awaited Section 111 Mandatory Insurer Reporting Civil Monetary Penalties (CMPs) rule has been released. Recall that the purpose of the rule is to set out specific criteria for when CMS may impose penalties for what it considers a failure to report or improper reporting. The rule is unpublished but will be considered published tomorrow, October 11.

In conjunction with its release, the Centers for Medicare and Medicaid Services issued the following Alert:

Effective Dates

Please note that this rule is effective as of 60 days following the date of publication (December 11, 2023), but is only applicable one year after publication (October 10, 2024). RREs are expected to be compliant with their Section 111 Mandatory Insurer Reporting requirements no later than October 10, 2024, or they may be eligible for a CMP.

Additional Information

RREs should review the published rule and take time to evaluate their reporting processes to ensure the RRE is compliant with all reporting requirements before the rule goes into effect. If RREs have any questions or concerns about their reporting, they should contact their EDI representative.

We know that CMPs are of great interest to RREs, and CMS is in the process of developing and publishing additional written guidance related to CMPs. Questions should be directed to the new CMS Section 111 Civil Money Penalties mailbox at Sec111CMP@cms.hhs.gov. Please be aware that responses should not be anticipated at this time; CMS will use these questions and comments to help inform outreach and educational materials (including webinar presentations). RREs should continue to monitor the Mandatory Insurer Reporting pages on CMS.gov where additional guidance and updates, including information about CMP-related webinars, will be posted.

Key Takeaway

The initial key takeaway from this announcement is the rule will be enforced against RREs starting on October 10, 2024, one year from today. Further, as noted by CMS, there will be additional guidance before that date.

We are in the process of reviewing the regulation and will provide a complete analysis shortly. This will be followed by an invitation to a special Tower webinar to explain the rule and its implications for RREs and answer your questions.

If you have any immediate questions, please reach out to Tower’s Chief Compliance Officer, Dan Anders at daniel.anders@towermsa.com.

CMS Changes Rules for ORM and NOINJ Reporting in the Latest Update of its Section 111 Reporting User Guide

June 9, 2023

Tower MSA Partners explains CMS updates to ORM and NOINJ rules in the Section 111 reporting user guide.

The Centers for Medicare and Medicaid Services (CMS) recently released Version 7.2 of its MMSEA Section 111 User Guide. The guide contains some notable updates for Ongoing Responsibility for Medicals (ORM) reporting, determination of the ORM termination date with a physician letter, and use of the NOINJ code in certain liability settlements.

Revised Trigger for ORM Reporting

CMS revised Section 6.3 (Policy Guidance) on the trigger for reporting Ongoing Responsibility for Medicals (ORM):

The trigger for reporting ORM is the assumption of ORM by the RRE, which is when the RRE has made a determination to assume responsibility for ORM and when the beneficiary receives medical treatment related to the injury or illness. Medical payments do not actually have to be paid, nor does a claim need to be submitted, for ORM reporting to be required. The effective date for ORM is the DOI, regardless of when the beneficiary receives the first medical treatment or when ORM is reported.

We surmise that CMS added the additional requirement (bolded) for reporting ORM so that allow no-fault plans do not have to report ORM on minor claims that have no evidence of medical treatment. Workers’ compensation plans already have an exclusion for reporting ORM on minor medical-only WC claims where medical payments do not exceed $750, along with other requirements (See Section 6.3.1 of the guide).

The change raises an interesting question: What obligation does the no-fault plan have to determine if treatment has occurred? In other words, does the no-fault plan have to actively inquire about treatment? Or can it be passive and wait to report ORM after treatment is occurring? There isn’t an answer from CMS’s ORM definition.

Determining ORM Termination Date Based on Physician Statement

CMS previously added a provision to Section 6.3.2 (Policy Guidance) which allows ORM termination based on a physician statement finding that no additional medical items and/or services associated with the claimed injuries will be required. Apparently, a question arose about what ORM termination date to enter if such a physician letter is obtained. Per CMS:

Where an RRE is relying upon a physician’s statement to terminate ORM, the ORM termination

date to be submitted should be determined as follows:

Where the physician’s statement specifies a date as to when no further treatment was

required, that date should be the reported ORM termination date;

Where the physician’s statement does not specify a date when no further treatment was

required, the date of the statement should be the reported ORM termination date;

Where the physician’s statement does not specify a date when no further treatment was

required, nor is the statement dated, the last date of the related treatment should be used as the ORM termination date.

The above should clarify the appropriate ORM termination date to use when a physician statement is obtained.

Reporting of NOINJ is Now Optional

Since the early days of Section 111 reporting CMS has required liability claims where medicals are released in settlement but where the type of claim typically has no associated or alleged medical care to be reported. Because there were no diagnosis codes to report, these claims were reported with a “NOINJ” code. Examples of such claims were loss of consortium, an errors or omissions liability insurance claim, a directors and officers liability insurance claim, or a claim resulting from a wrongful action related to employment status action.

CMS has now revised its policy in Section 6.2.5.2 of the User Guide (Technical Information) on the reporting of such claims to state:

Note: In cases where the reporting of a liability record only meets the criteria for reporting a ‘NOINJ’ diagnosis code in Field 18, the reporting of the record is no longer required. However, it is optional for the RRE to report the record with the ‘NOINJ’ diagnosis code following the previously existing rules in the User Guide as follows:

This update is great news for carriers who have had to report these types of claims for more than a decade now.

If you have any questions on these updates, please contact Tower’s Chief Compliance Officer, Dan Anders, at (888) 331.4941 or daniel.anders@towermsa.com

CMS News Roundup: New Conditional Payment Appeals Guide & Webinar on Section 111 Reporting

May 25, 2023

Learn what CMS shared about non submit MSAs, WCMSA policy updates, Medicare obligations, & key guidance for workers' comp settlements.

The Centers for Medicare and Medicaid Services (CMS) recently released a how-to guide for appealing Medicare conditional payment demands. The Non-Group Health Plan (NGHP) Applicable Plan Appeals Reference Guide consolidates conditional payment rules and best practices that the agency has issued through webinars, slides and its website.

Section 2.0 gives a breakdown of the appeals levels and explains how to submit an appeal and authorization/letter of authority requirements. Section 3.0 details what can be appealed and supporting documentation. Section 4.0 lists additional resources. Finally, an appendix provides sample letters and model language for applicable plans to appoint recovery agents.

It is important to note that this guide does not cover Conditional Payment Notices (CPNs), which are issued before demand letters to allow the recipient 30 days to dispute the charges. However, the bases for CPN disputes are the same as those found in Section 3.0. When the dispute fails or is not timely, a demand letter is issued and the demand letter can be appealed, even with the same arguments used to dispute the CPN.

We appreciate CMS taking the time to draft and release this guide. It joins the WCMSA Reference Guide and the Section 111 User Guide as critical reference tools for anyone impacted by Medicare Secondary Payer compliance.

CMS Section 111 Non-Group Health Plan (NGHP) Unsolicited Response File Webinar

The Centers for Medicare and Medicaid Services (CMS) recently published a Section 111 reporting webinar notice for a webinar on June 6, 2023 at 1:00 PM ET and states:

CMS will be hosting a webinar regarding the upcoming implementation of the Section 111 NGHP
Unsolicited Response File option. The format will be opening remarks by CMS, a presentation that will include background as well as how to opt in and what to expect, followed by a question and answer session. For questions regarding this topic, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110- 173SEC111-comments@cms.hhs.gov

As of July 2023, Responsible Reporting Entities (RREs) can opt-in to receive a monthly “NGHP Unsolicited Response File” via the Section 111 secure website. Per CMS, the file “will provide critical information about updates to ORM records originally submitted in the last 12 months and allow RREs to either update their internal data or contact the Benefits Coordination & Recovery Center (BCRC) for a correction.”

It is important for an RRE to review and confirm that the changes made by the BCRC and listed in this report are correct. If not, then the BCRC must be contacted to advise them that the RRE disagrees with the change made by the BCRC. We encourage anyone involved in managing Section 111 reporting to tune in. Please note that there is no pre-registration; the link and call-in numbers are on the notice. You log in shortly before the webinar’s start time.

CMS to Provide RREs with Response File on ORM Record Changes

A Claims Professional’s Guide to Common MSP Acronyms and Abbreviations

January 19, 2023

Picture of scrabble tiles that could be put together to create MSP ACRONYMs

People in the MSP compliance business rattle off acronyms and abbreviations, such as AWP, MMSEA, and TPOC like it’s second nature. People immersed in Section 111 reporting and Medicare Set-Asides understand the abbreviations, but most people listening to us do not. So, here’s a quick cheat-sheet (or handy guide) to frequently used acronyms and their meanings:

Common MSP Acronyms and Abbreviations

AWP – Average wholesale price: The AWP is a Red Book pricing reference for prescription drugs. The lowest AWP is used to calculate Medicare Part D drugs in a Workers’ Compensation Medicare Set-Aside (WCMSA).

BCRC – Benefits Coordination & Recovery Center: This contractor to the Centers for Medicare and Medicaid Services consolidates the activities that support the collection, management, and reporting of other primary insurance coverage for Medicare beneficiaries. In short, it manages the MMSEA Section 111 reporting program and pursues conditional payment recovery when the claimant Medicare beneficiary is the debtor.

CMS – Centers for Medicare and Medicaid Services: The federal government agency oversees the Medicare program. CMS’s Division of MSP Program Operations directly manages CMS’s Medicare Secondary Payer (MSP) enforcement programs.

COB – Coordination of Benefits: The coordination of benefits (COB) program aims to identify the health benefits available to a Medicare beneficiary and to coordinate the payment process to prevent mistaken payment of Medicare benefits.

CRC – Commercial Repayment Center: This CMS contractor pursues conditional payment recovery when the self-insured entity or the insurer is the identified debtor.

CWF – Common Working File: CMS uses this tool to maintain national Medicare records for individual beneficiaries enrolled in the Medicare program. For example, a funded CMS-approved workers’ compensation Medicare Set-Aside (WCMSA) will trigger a marker in the CWF, so Medicare will not pay for care covered by the WCMSA.

LMSA – Liability Medicare Set-Aside: General term for an MSA in a liability case settlement.

MBI – Medicare Beneficiary Identifier: The Medicare Beneficiary Identifier (MBI) is the identification number replaced SSN-based health insurance claim numbers (HICNs) on all Medicare transactions, such as Medicare cards, billing, claim submissions and appeals.

MIR – Mandatory Insurer Reporting: Another term for MMSEA Section 111 reporting.

MMSEA – Medicare, Medicaid, SCHIP Extension Act of 2007: Section 111 of this act added mandatory reporting requirements regarding Medicare beneficiaries who have coverage under group health plan (GHP) arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards, or other payment from liability insurance (including self-insurance), no-fault insurance, or workers’ compensation, collectively referred to as Non-Group Health Plan (NGHP) or NGHP insurance.

MSA – Medicare Set-Aside: An account used to pay for injury-related and Medicare-covered medical services and prescription medications. It is a portion of a settlement that is reserved or “set-aside” for this purpose.

MSP – Medicare Secondary Payer: This is the term generally used when the Medicare program does not have primary payment responsibility, that is when another entity, such as workers’ compensation or liability insurance or a group health plan, is responsible for paying before Medicare.

MSPRP – Medicare Secondary Payer Recovery Portal: A web-based tool designed to assist in the resolution of liability insurance, no-fault insurance, and workers’ compensation Medicare recovery cases.

NGHP – Non-Group Health Plan: Typically used in reference to Section 111 reporting, NGHP includes liability insurance (including self-insurance), no-fault insurance, and workers’ compensation.

ORM – Ongoing Responsibility for Medicals: This refers to the Responsible Reporting Entity (RRE) paying for the injured party/Medicare beneficiary’s ongoing medical treatment associated with the claim.

RO – Regional Office: A CMS RO is assigned to each WCMSA case (based on the claimant’s state of residence); that RO makes the final determination of the appropriate funding level for the WCMSA.

RRE: Responsible Reporting Entity: The applicable plan, namely the NGHP, responsible for Section 111 reporting to CMS.

SSDI – Social Security Disability Insurance: Pays monthly benefits to workers who can no longer work due to a significant illness or impairment that is expected to last at least a year or result in death within a year.

SSN – Social Security Number: A numerical identifier assigned to U.S. citizens and other residents to track income and determine benefits.

TPOC – Total Payment Obligation to the Claimant: For Section 111 reporting purposes, CMS uses the term TPOC to refer to the dollar amount of the total payment obligation to, or on behalf of, the injured party in connection with the settlement, judgment, award, or other payment in addition to/apart from ORM.

WCMSA – Workers’ Compensation Medicare Set-Aside: This 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, illness, or disease.

WCMSAP – Workers’ Compensation Medicare Set-Aside Portal: The WCMSAP may be used to submit and view WCMSA proposals, to communicate about the review approval process, and to submit re-review requests. Users can also view the status and balance of an established WCMSA and submit annual attestations and detailed transaction records.

WCRC – Workers Compensation Review Contractor: This CMS contractor reviews all submitted WCMSAs and advises the CMS Regional Office whether the proposed WCMSA is sufficient, or a higher or lower amount is recommended.

CMS Withdraws Proposed Rule on Future Medicals in Liability Settlements

October 18, 2022

CMS withdraws rule on future medicals in liability settlements affecting LMSA guidance

On October 13, 2022, the Centers for Medicare and Medicaid Services (CMS) withdrew its proposed rule on future medicals in liability settlements from review by the White House Office of Information and Regulatory Affairs (OIRA review and approval is required before a proposed rule is published).

While never published to the public, the proposed rule was expected to provide guidance regarding obligations associated with future medical items in liability cases. It was commonly believed these obligations would include the use of a Liability Medicare Set-Aside (LMSA), similar to MSAs used in workers’ compensation, in certain situations.

What is uncertain now is whether a proposed rule around LMSAs will be reworked and resubmitted to OIRA for consideration soon or whether CMS is closing out regulations around liability settlements and future medicals for the foreseeable future. This is the second time CMS has withdrawn a rule on LMSAs, with the first withdrawn in 2014.

Practical Implications

While the lack of guidance around future medical obligations to CMS may have frustrated parties to liability settlements, these parties could have been even more frustrated if CMS had issued rules. As it is, parties in liability cases continue to have much more discretion in determining how to best consider Medicare’s interests in future medicals at the time of settlement than do parties in workers’ compensation cases.

What should settling parties do, given that no CMS LMSA review policy or process currently exists? Please reference Tower’s “Navigating Through the Fog: Medicare, Future Medicals & Liability Settlements” as a starting point. Of course, always feel free to contact me, Dan Anders, for consultation at Daniel.anders@towermsa.com or 888.331.4941.

CMS Rulemaking Notices Provide Possible Timeline for Criteria on LMSAs and Reporting Penalties

Automation has its place, but it can’t replace people in MSP compliance

October 3, 2022

Automation in MSP compliance cannot replace human expertise in complex claims

Technology isn’t everything. It may seem hard to believe that I have said this because most of my career was steeped in technology.

In my past life, I developed automation systems for pharmacies and workers’ comp pharmacy benefit management (PBM) models. Rules-based adjudication platform allowed for automatic Rx fills for many prescriptions, but also supported trigger-based escalation for the outliers to request authorization or have an expert take a closer look. The time saved and convenience provided were astounding.

When we started Tower, Kristine Dudley and I automated much of the paper-intensive world of Medicare Set-Asides, and also integrated the 3 major components of Medicare Secondary Payer compliance, Section 111 Mandatory Insurer Reporting, Conditional Payments and Medicare Set Asides, into a single platform. I believe we were the first to do that.

Our platform, Tower’s MSP Automation Suite, was built based on state workers’ compensation statutes overlayed with WCMSA guidance, metrics-based KPI tracking and intervention / escalation triggers that supported MSP best practices. By seamlessly integrating Section 111 reporting, conditional payment resolution, and MSA preparation into a single, all-encompassing system, our MSP Automation Suite ensures that nothing drops through the cracks, no field goes unpopulated, problem cases can be identified, and deadlines are met.

Tower’s MSP Automation Suite captures, stores and manages all data points, integrates with ANY claims system, enables clients’ business rules to be overlaid onto ours, and gives our clients end-to-end visibility into Medicare and claim information. Our system also leverages embedded triggers to escalate medical and pharmacy issues, prompting a review for intervention. In short, Tower’s MSP Automation Suite leverages the best of automation until technology intersects with the need for expertise. This allows our team to manage, track and drive MSP compliance from the moment a Medicare beneficiary is identified through the claim’s closure.

Do we love automation? You bet we do.

But we realize automation can’t do everything. MSP compliance has always – and will always – require a high degree of consultative expertise. You can’t just capture and populate data fields, and automatically “pop” out an MSA that supports aggressive cost mitigation that is both CMS-approvable and facilitates settlement.

While many workers’ compensation claims move through the system seamlessly, others are “messy”. Body parts may be denied, additional claims may exist, co-morbid conditions may complicate treatment, surgeries, medical treatment and medications may be prescribed inappropriately or ICD10 codes may be too general or inconsistent with the treatment being paid by the carrier. These are just a subset of the rules-based triggers built into our system so that claims warranting attention are automatically escalated to a human expert to dig through files, examine causation questions, and probe open-ended medical care and contradictory medical records.

Clients need their calls, emails and questions answered by real people, and quickly. Complex conditional payment matters call for conversations … with a knowledgeable partner who shares your goals.

Our automated system escalates medical and pharmacy issues, but then you need a professional with specialized knowledge and experience to recommend the best intervention. And to implement it.

One of our most effective interventions created by Tower is our Physician Follow-up. Guess what? This is performed by people, people who have the patience and commitment to keep trying to talk to the provider. If you’ve tried to call and talk to your own doctor lately, you know what a challenge this can be.

These professionals have the knowledge and soft skills needed to delicately point out vague notes and open-ended recommendations in medical records. And they must be able to persuade the provider to clarify their treatment and prescriptions. Drafting a jurisdiction-specific statement for the provider to sign requires yet another human skill set.

If I had to name the one aspect that drives Tower’s success, I’d have to say service. Our technology enables us to respond quickly, anticipate issues, and proactively address them, but it’s the people, their attitudes, and their expertise our clients value the most.

The common thread in our client testimonies are service and partnership. Clients are “very impressed with [Tower’s] level of communication and availability to help answer questions,” and they say, “they truly listen; listen to understand and not just to respond.”

Perhaps this person sums things best: “They have advanced technology and certified specialists to ensure no stone is unturned.”

Insurance carriers, self-insureds and TPAs are dealing with shortfalls in staffing. There’s more pressure on the experienced adjusters, and the new hires need all kinds of support to get up to speed on MSP matters. Tower MSA Partners is here to help. That’s what the Partners part of our name means.

We are proud of our technology, and we recognize when to leverage it and when automation must give way to consultative expertise. There is a need for partnership with real people who care about your claim closure and settlement and can ensure that happens with the right balance of care, cost and compliance.

If you have any questions or just want to talk about partnership opportunities, the expertise of our people, or our technological capabilities contact me at rita.wilson@towermsa.com.

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

May 12, 2022

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

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

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

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

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

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

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

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

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

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

Related articles

The PAID Act: Implementation and Implications for Claims Handling

Tower MSA Partners Receives 2022 SOC 2 Type II Attestation

May 3, 2022

Independent Audit Verifies Tower MSA Partners’ Internal Controls and Processes

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

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

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

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

What does this mean for you?

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

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

Premier Webinar: Medicare Advantage Plan Reimbursement – What Now?

April 7, 2022

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

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

Here’s just some of what you will learn:

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

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

REGISTER HERE