Tag: medicare-set-aside

Practical Implications of the Revised CMS WCMSA Reference Guide

August 18, 2017

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

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

The relevant change to this section is as follows:

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

Practical Implications

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

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

Recognition of State-Specific Statutes (Section 9.4.5)

The relevant change to this section as follows:

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

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

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

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

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

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

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

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

    CMS has issued a conditional approval/approved amount at least 12 but no more than 48 months prior,
    The case has not yet settled as of the date of the request for re-review, and
    Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

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

Added Section on Required Resubmission (Section 16.1)

The addition to this section is as follows:

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

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

Additional MSA Administration Guidelines (Section 17.1)

The addition to this section is as follows:

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

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

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

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

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

July 12, 2017

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

  • Must have been originally submitted between one and four years from the current date.
  • Cannot have a previous request for an Amended Review.
  • Must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount (The amount can be greater or less than the previously approved MSA amount).

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

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

    Practical Implications of Amended Review Policy

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

    Unanswered Questions Regarding Policy

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

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

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

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

    Does My Case Fit the CMS Amended Review Criteria?

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

    Additional Changes in Updated WCMSAP User Guide

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

  • Claimants who are Medicare beneficiaries now have access to the WCMSAP through MyMedicare.gov. Accordingly, claimants are able to view MSA submissions and supporting documentation although will not be able to modify the documentation or otherwise take any actions on the submission which remain solely with the submitter of the MSA, i.e. Tower MSA.
  • For MSA submissions that have been closed for more than 12 months (Usually as a result of a non-response to a Development Letter), an entirely new MSA submission must be made with all documents generally required of a new MSA submission, i.e. two years of medical records. The new MSA submission will be assigned a new Case Control Number.

    • Not So Secret Tips for Quick and Successful MSA Submissions

    June 8, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Can depositions be submitted to CMS for review?

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

    Can an IME be submitted to CMS for review?

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

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

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

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

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

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

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

    April 28, 2017

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

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

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

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

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

    1. Claim Payment History

  • A claim payment history printout, even if blank, representing payments since the inception of the claim. All payments must be itemized.
  • Printout must be divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total listed. Print or run date listed on the printout.
  • Date range for listed payments – Must be since inception of claim.
  • If the Claim Payment History does not meet the above requirements, then the following rules apply:

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

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

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

    • 2. Claim Reserves

  • A Claim Reserves printout divided into categories for medical, indemnity and expenses with subtotals for each category and a grand total.
  • Print or run date listed on the printout.
  • If there is a legal argument for claiming the reserve information is privileged then the legal argument, including citations to statute or case law must be provided along with a copy of a redacted (reserve information blacked out) version of the Claim Reserves printout.
  • If no reserves were placed on the claim, then a statement regarding the same.

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

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

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

  • A statement indicating the claim was completely or fully denied with no medical or indemnity payments having been made.
  • If medical payments have been made for non-treatment purposes, i.e. IME, case management, medical records requests, then if the Claim Payment History does not properly explain the purpose of these payments, then provide an explanation for the payments.
  • If the available Claim Payment History does not meet the requirements under #1, then state that the carrier’s claim system does not have the ability to provide a Claim Payment History printout with the information requested by CMS, i.e. print date, subtotals for medical, indemnity and expenses.
  • If Claim Payment History did not meet the requirements under #1, then insert the requested information into the letter, i.e.list categories for medical, indemnity and expenses with subtotals for each category and a grand total.
  • If there are no draft or final settlement documents and no court orders or rulings, then a statement regarding the same.
  • If there is no First Report of Injury, then a statement regarding the same.
  • Letter must be placed on letterhead and hand signed.


    • 6. Consent to Release form executed by claimant

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

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

    April 21, 2017

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

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

    CMS Rules Require Submission of All Injury Related Medical Records

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

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

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

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

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

    Response Scenarios to CMS Requests for Medical Records

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

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

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

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

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

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

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

    Scenario #4 – Medical Records Containing Inconsistencies

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

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

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

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

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

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

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

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

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

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

    In a Volatile Political Climate MSAs & Professional Administration Provide Much Needed Assurances

    March 17, 2017

    Learn why MSAs and professional administration offers stability in an otherwise volatile and partisan political environment in this joint article between Ametros Financial and Tower MSA Partners

    These first few of months of 2017 have been, to put it mildly, volatile in national politics. The incoming Trump Administration and a Republican Congress are poised to tackle the federal budget, Medicaid, and the Affordable Care Act (Obamacare) among many other federal programs. All of these issues have sharp partisan divides, however no matter where your views lay on the political spectrum, if you are a professional involved in the workers compensation industry, these issues may have a big impact on how you can be successful at your job.

    This article looks at what impact the Trump administration and a Republican-controlled Congress may have on Medicare Set-Asides (MSAs) in the context of the legislative and regulatory history of the Medicare Secondary Payer (MSP) Act and how the uncertainty resulting from potential changes to federal healthcare programs results in MSAs and professional administration being even more relevant in the settlement of workers’ compensation cases.

    The MSP Act Has Been and Remains Bipartisan

    A review of the history of the MSP Act demonstrates a noticeably bipartisan effort to improve and expand its applicability and enforcement mechanisms. The MSP Act was enacted in 1980 during President Carter’s administration. Subsequent to its passage, provisions were added over the Reagan, George H.W. Bush and Clinton administrations, all emphasizing Medicare being secondary to group and non-group health plans. The most notable legislative expansion occurred in 2007 when a Democratic-controlled Congress passed, and President George W. Bush signed into law, the Medicare, Medicaid and SCHIP Extension Act which included Section 111 Mandatory Insurer Reporting provisions for group and non-group health plans. There also continues to be a decade long effort to pass bipartisan legislation which would implement certain reforms to the Workers’ Compensation Medicare Set-Aside (WCMSA) review process. While the most recent WCMSA reform bill died in the last Congress it is expected a new bill will be reintroduced in 2017.

    Besides legislative expansion of the MSP Act, during President George W. Bush’s administration there occurred the release of the July 23, 2001 CMS memo, commonly called the “Patel Memo.” The Patel memo and subsequent CMS memos effectively formalized a process for CMS to review and approve WCMSAs.

    MSA reviews continued, Medicare conditional recovery processes expanded and Section 111 was implemented all during the course of President Obama’s administration. The only legislative change to the MSP Act occurring during the Obama years was the passage of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act) which was a successful bipartisan effort to address deficiencies identified in the MSP Act, particularly Section 111 reporting and Medicare conditional payment recovery.

    Since the enactment then of the MSP Act in 1980 it has continued to be expanded and enforced consistently across both Republican and Democratic Presidents and Congresses.

    Why has there not been a partisan divide? The simple reason is that the MSP Act forces entities other than the federal government to pay which has benefits for both political parties. For Democrats it demonstrates their protecting the viability of a federal government entitlement program while for Republicans it demonstrates their protecting taxpayers by shifting costs away from the government. While the Trump administration has to our knowledge never issued any MSP policy statements, based upon the past bipartisanship on this issue, our expectation is the administration will continue and possibly expand the MSP compliance programs at CMS.

    Uncertainty Over Federal Healthcare Programs to Drive Assurance with MSAs

    President Trump has indicated repeatedly that he will not reduce benefits to Medicare beneficiaries. Nonetheless, Medicare beneficiaries are facing premium increases. Notably, a Kaiser Family Foundation report indicated Part D premiums are rising by an average of 9% in 2017. As for Medicaid, the Trump administration is supporting a block grant program which would give more discretion to the states in formulating and implementing their own Medicaid programs compared to the present process which includes significant federal oversight. Finally, and most significant, is the Republican-led initiative to “repeal and replace” the Affordable Care Act, commonly known as ObamaCare. These potential changes to statutory programs create uncertainty for injured workers contemplating settlement of medical in their workers’ compensation cases.

    Uncertainty for injured workers exists with programmatic changes to Medicare and private group health plans which are increasingly driven by a more value-based approach to healthcare delivery. A value-based approach provides incentives to medical providers to be more cautious with prescribing treatments and medications which may have limited value to the patient. This is also usually tied in part to a utilization review process which places limits on care through the use of evidence-based medicine. While in the past some injured workers have settled medical stemming from their work related injury confident that they could shift their ongoing work-related care, if any, to their group health plan, such coverage may now be limited. And when it comes to shifting costs to Medicare, CMS’s long-standing policy is such costs must be accounted for in an MSA.

    MSAs and professional administration A Flight to Certainty

    Accordingly, injured workers and their attorneys when settling their workers’ compensation cases will look for certainty where it can be obtained so that they have the assurance of access to medical care for their future injury-related care. For claimants who are Medicare beneficiaries or are close to becoming Medicare beneficiaries, such assurance can be obtained by a properly allocated MSA which is CMS-approved, when necessary, and professionally administered to maintain the MSA funds over life-expectancy in compliance with CMS rules.

    Tower MSA Partners is committed to providing employers and claimants a reasonable MSA allocation which, along CMS guidelines, properly accounts for future injury-related and Medicare-covered medical care without unnecessary overfunding. This often includes Tower MSA reaching out to treating physicians to confirm current care regimens or clarity regarding ongoing medication and treatment prior to submission of the MSA to CMS.

    While CMS approval of the MSA and subsequent funding provides assurance at the point of settlement that funds for injury-related medical have been provided, equally important is proper administration of those funds such that an injured worker can be assured the funds for his or her care will last over their life expectancy and that there will be a seamless transition to Medicare for payment if the funds every run out.

    Ametros’ professional administration service, CareGuard, secures the injured party discounts on their medical treatment, and prescription costs. All the while they are free from utilization review allowing them to not have to worry about their treatment being rejected. Additionally, CareGuard will makes sure all MSA expenses are accounted for in the eyes of Medicare. Cost-effective programs like CareGuard are in place to protect the injured worker post-settlement and ensure compliance with CMS requirements for MSA administration.

    In this current era of high uncertainty, all parties can rest easy by focusing on known methods to protect themselves and the injured party throughout the claim handling and settlement process. That’s why many believe it is more critical than ever to obtain an adequate MSA that will cover the ongoing medical care of the injured party and, upon settlement, to have a professional administrator help the injured party make the funds last as long as possible and do all the required Medicare reporting.

    For further information or questions om MSAs and professional administration, please contact:

    Tower MSA Partners
    Dan Anders (847) 946-2880 or Daniel.anders@towermsa.com

    Learn more at: www.towermsa.com

    Ametros
    Porter Leslie – (339) 223 9857 or pleslie@ametroscards.com
    or
    Jayson Gallant – (339-234-3420) or jgallant@ametroscards.com

    Learn more at: www.ametroscards.com

    CMS to Begin Referencing 2012 Life Expectancy Table on April 1

    March 13, 2017

    The Centers for Medicare and Medicaid Services (CMS) announced on 3/8/2017 that it “will begin referencing the CDC’s Table 1: Life Table for the total population: United States, 2012, for workers’ compensation medicare set aside (WCMSA) life expectancy calculations on April 1, 2017.” CMS presently uses the 2011 table, thus this announcement represents an expected annual update to the next available CDC table. In most instances the update to the most recen table represents at most a one-year change in the life expectancy used in the MSA report compared to the prior table. All Tower MSA reports completed on or after 4/1/2017 will reference the 2012 table.

    The 2012 Life Table for the total population may be found on Pages 10-11 of the CDC report.

    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.

    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.

    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