medicare-set-aside Archives

CMS Letter Confirms that Denial for Non-Submit MSAs is Real

February 11, 2022

Man confused about Medicare Set Aside (MSA) and cms denial

CMS to Hold WCMSA Webinar on February 17

The Centers for Medicare and Medicaid Services updated its Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide on 1/10/22 adding a section that addresses non-submit MSAs or evidence-based MSAs. The new section makes it clear that CMS will treat the use of such MSAs as a potential attempt to shift the financial burden of future medical care to Medicare.

Since the update, questions have swirled around whether CMS will follow through and deny payment for Medicare beneficiaries with non-submit MSAs.

Now we know CMS does and will.

Tower MSA Partners obtained a recent letter sent to a Medicare beneficiary claimant in which CMS advised that while a certain amount for future medical was agreed to in settlement between the claimant and the employer/insurer, as the claimant chose to forgo the CMS WCMSA review process, Medicare will not pay until the entire settlement minus procurement costs is exhausted. In other words, the non-submit MSA is not recognized as the limit of settlement funds available to pay for future medical.

The letter states:

Section 1862(b)(2)(A) of the Social Security Act prohibits the Medicare program from making payment where payment was made or may reasonably be expected to be made by another party. 42 C.F.R. 411.46 specifically allows Medicare to deny payment for treatment of work-related conditions if a settlement does not “adequately protect Medicare’s interest”-that is, does not include enough money to pay for treatment of those conditions. Because you did not seek prior review and approval by CMS of the amount set aside in your settlement for your future medical care, Medicare will not pay for the treatment of your work-related condition until you have demonstrated the appropriate exhaustion of your “net” settlement proceeds. Please review the enclosed package for information about the submission of annual attestations. Once you have shown that the settlement proceeds (total settlement amount minus procurement costs such as attorney fees, and minus funds repaid to Medicare for care prior to the date of settlement) have been exhausted, Medicare will make payment again. If you have questions about this letter, please call RO-09 CUSTOMER SERVICE at (415) 744-3658.

Also notable is that CMS issued the letter on 1/13/2022, a few days after the WCMSA Reference Guide update on 1/10/2022. In addition, the letter references a settlement date of 11/17/2021, one that occurred before the update. This confirms CMS is reviewing non-submit MSAs retrospectively.

The letter shows that CMS does not recognize the amount set aside for future medicals when it has not reviewed and approved the MSA. Instead, the Medicare beneficiary claimant must exhaust the amount in their entire settlement minus procurement costs before Medicare will cover future medicals. The following scenario illustrates this:

Parties settle a workers’ compensation case for $50,000 inclusive of $10,000 for a non-submit or evidence-based MSA. Procurement costs (attorney’s fees and expenses) are $12,000 of the settlement. Post-settlement the claimant Medicare beneficiary (whether self or professionally administering the MSA) uses the $10,000 to pay for injury-related treatment and medications. However, treatment is still needed.

At this point, Medicare’s position is that the entire settlement amount minus procurement costs, $50,000 – $12,000 = $38,000 is available to pay for such care. It would need to be documented to CMS that not just $10,000, but $38,000 was paid for injury-related care before Medicare steps in to pay.

There is no problem with Medicare unless the $10,000 runs out and injury-related care is still needed.

As Tower discussed in our prior article, CMS; Non-Submit MSAs Potentially Shift Costs to Medicare, and in our recent webinar, many questions remain. Some may be answered in CMS’s upcoming webinar on Thursday, February 17, at 1 p.m. ET.

Here is the announcement:

CMS will be hosting a webinar to discuss a variety of WCMSA topics, including a summary of what’s new in Medicare set-asides, and addressing questions related to the inclusion of treatments, application of state rules, re-reviews/amended reviews and more. The webinar format will be opening remarks and a presentation by CMS followed by a live question and answer session with representatives from CMS.

Note, there is no pre-registration, instead just follow the provided link shortly before the webinar start time.

Additionally, Tower is working with our industry colleagues at the National MSP Network (MSPN) to directly address questions around the policy and seek needed clarifications, especially around retrospective applicability, Medicare beneficiary claimant appeal rights, and settlements that do not meet CMS WCMSA review thresholds.

The bottom line is CMS has begun 2022 with a significant effort to assert what it believes is its right to claim the entire settlement amount, minus procurement costs, as available to pay for future injury-related medical when the settlement does not include a CMS-approved MSA. Parties to settlements where the CMS WCMSA review thresholds are met and the MSA is not submitted should be wary of the risks and the potential extent of liability for payment of future medical before Medicare will pay for injury-related care.

Since its founding a decade ago, Tower has recommended MSA submission when CMS review thresholds are met. Consequently, we have extensive experience in the CMS submission process and can identify and address MSA cost drivers and facilitate quick CMS MSA approval. We would be pleased to discuss a seamless transition from a non-submit to submit MSA program which properly addresses future medical costs while also confirming CMS compliance.

If you have any questions, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or daniel.anders@towermsa.com.

Study Shows Post-Settlement Medicare Treatment Denials Do Occur

February 1, 2022

Study showing Medicare treatment denials for Medicare Set Asides and the importance of proper MSA administration and compliance.

A recent study finds Medicare treatment denials systematically occur in medical claims for Medicare beneficiaries with Medicare Set-Asides (MSAs).

“Don’t worry so much about the Medicare Set-Aside; Medicare will never deny post-settlement treatment claims.” That is the refrain from some when the matter of an MSA inclusion in settlement arises.

Tower has consistently warned that Medicare has steadily increased efforts to protect the agency’s interests. One need only look at CMS’s Section 111 Mandatory Insurer Reporting platform or its two conditional payment recovery contractors, the CRC and BCRC, to see CMS is serious about enforcing the Medicare Secondary Payer (MSP) Act. Still, some believe that Medicare will not deny claims post-settlement.

Thanks to our Professional Administrator Partner Ametros, we now know CMS will deny post-settlement claims for injury-related treatment.

Ametros wanted to know what happened when a Medicare beneficiary with a fully funded, CMS-approved MSA failed to report proper exhaustion of funds to Medicare and then billed Medicare for injury-related claims. To find out, Ametros’ General Counsel Shawn Deane and Senior Strategic Account Executive Jayson Gallant worked with the Research Data Assistance Center (ResDac) to analyze Part B claim data.

The result?

Researchers examined a random sample of five percent of the Medicare beneficiary population over a three-year period. They estimated the following number of claims were denied because WCMSA funds were responsible for their payment.

35,980 in 2018
36,060 in 2019
30,720 in 2020

The key conclusion of the report is “Medicare is systematically denying MSA recipients’ claims, and with steady frequency.”

You can download the free report “A Study of CMS Policy on Treatment Denials for Injured Workers with a Medicare Set Aside from Ametros’ website (ametros.com/medicaredenials). Plus, Ametros will present the study’s findings in a February 15 webinar starting at 1 p.m. EST. Register here.

Practical Implications

As Tower always suspected–and as CMS always warned–the agency will deny claims that should be covered by an MSA. Consequently, the most important implication is the need for the proper administration of those funds whether that is with professional administration or self-administration assistance. Both services are available through our partner Ametros and are recommended for most MSAs.

The study specifically indicated it did not consider non-submit MSAs or non-CMS-approved MSAs. One might argue then that a non-submit MSA is the better option because if CMS is not aware of the MSA, it will not deny payment for injury-related medical care. Such a position is problematic for the following reasons:

While CMS may not be aware of a non-submit MSA, it is aware of any settlement involving a Medicare beneficiary claimant because these are reported through the Section 111 reporting process.
CMS recently updated its WCMSA Reference Guide to add Section 4.3 which views non-submit/evidence-based MSAs “as a potential attempt to shift financial burden” to Medicare. The guidance goes on to state that “CMS will deny payment for medical services related to the WC injuries or illness requiring attestation of appropriate exhaustion equal to the total settlement less procurement costs before CMS will resume primary payment obligation for settled injuries or illnesses.”
Given CMS has a process in place to deny injury-related treatment in CMS-approved MSAs, where a CMS-approved MSA is not on records, CMS can presumably use the Section 111 reporting information to deny payment for medical treatment up to the settlement amount.

Accordingly, a non-submit MSA when the MSA qualifies for CMS review/approval presents its own risks and with CMS’s increased focus on non-submit MSAs, these risks are heightened.

Whether a CMS-approved MSA or non-submit MSA is used, payers should commit to producing MSAs that balance care, cost and compliance and strongly encourage those MSAs are professionally administered by a company like Ametros.

Tower will host a webinar on February 5 at 2 p.m. ET, WC Settlements in Light of CMS Policy on Non-Submit MSAs which will touch on the Ametros study and further discuss the implications of CMS policy toward non-submit MSAs. Register here.

Please contact Dan Anders at daniel.anders@towermsa.com or 888.331.4941 with any questions.

CMS: Non-Submit MSAs Potentially Shift Costs to Medicare

January 13, 2022

CMS updates to the WCMSA Reference Guide addressing non submit Medicare Set Asides and Medicare Secondary Payer compliance.

The Centers for Medicare & Medicaid Services updated its Workers’ Compensation Medicare Set-Aside Reference Guide (Version 3.5) with new language on non-CMS-approved products used to address future medical care.

The update specifically addresses products commonly called evidence-based MSAs or non-submit MSAs. CMS says these products may be viewed as a potential attempt to shift financial burden to Medicare when they are not submitted, reviewed, and approved before settlement.

CMS Addresses Non-Submit MSAs in Updated WCMSA Guidance

CMS states that it cannot be certain Medicare’s interests are adequately protected unless a proposed amount is submitted, reviewed, and approved through the process described in the reference guide before settlement.

As a matter of policy and practice, CMS says it will deny payment for medical services related to the workers’ compensation injury or illness until the claimant demonstrates appropriate exhaustion. This could require exhaustion equal to the total settlement less procurement costs, rather than only a CMS-approved WCMSA amount.

Key Takeaways From the CMS Policy Update

CMS directly addresses evidence-based and non-submit MSAs in the reference guide.

The agency says non-CMS-approved products may be treated as a potential attempt to shift financial burden to Medicare.

CMS also states that it may deny payment for medical services related to workers’ compensation injuries until the total settlement has been exhausted.

This policy does not appear to be limited only to future MSAs. It could also affect existing non-submit MSAs unless CMS provides further clarification.

Questions About Non-Submit MSAs and CMS Approval

This does not appear to be a completely new CMS position. CMS has long stated that when an MSA is not approved, Medicare may deny related medical claims or pursue recovery for claims it paid, up to the full amount of the settlement.

What is different is that CMS now directly addresses evidence-based MSAs, non-submit MSAs, and vendor indemnifications that may accompany those arrangements. CMS also indicates that a claimant may need to demonstrate complete exhaustion of the net settlement amount before Medicare resumes primary payment for injury-related care.

What This Means for Payers and Beneficiaries

If a non-submit MSA was used to settle a case, CMS involvement is typically triggered when Medicare is asked to pay for injury-related medical care.

If the MSA amount is enough to cover that care, the beneficiary may not have an immediate issue. However, if the MSA is exhausted, CMS has made clear that it may deny payment.

For payers, this may create concern if indemnification, guarantees, or other liability provisions were used in connection with a non-submit MSA. Those provisions may be tested if Medicare denies payment for future injury-related care.

Cost-Effective CMS-Approved MSAs Are Possible

The non-submit MSA route is often based on the belief that CMS-approved MSAs include unrealistic allocations. However, Tower MSA Partners has found that MSA costs can often be contained while still pursuing CMS approval.

Tower does this through a clear understanding of CMS’s MSA pricing methodology, proactive record review, and targeted physician statements. This process helps move cases toward settlement while reducing the risk that CMS may later deny payment for future injury-related medical care.

Please contact Chief Compliance Officer, Dan Anders, with any questions about this or any other MSP compliance issue at Daniel.anders@towermsa.com or 888.331.4941.

Related Articles

Tower’s Dan Anders Says “It’s Still OK to Submit and MSA”

Celebrex and Abilify Price Drops Trigger MSA Reductions

December 14, 2020

Vial of pills illustrating MSA Reductions in RX costs

Recently, the lowest average wholesale price of Celebrex 200mg and the price of multiple strengths of Abilify dropped dramatically resulting in major MSA reductions.

A widely used, non-steroidal anti-inflammatory drug, Celebrex (Celecoxib), is FDA-approved for several conditions:

Ankylosing spondylitis
Juvenile rheumatoid arthritis
Acute migraines
Osteoarthritis
Acute pain
Primary dysmenorrhea
Rheumatoid arthritis

Per Red Book, the lowest average wholesale price for Celecoxib 200mg dropped from $1.79 to $0.33, an 81.56% price reduction.

Abilify (Aripiprazole) is an antipsychotic drug FDA-approved for the following conditions:

Schizophrenia
Acute treatment of manic and mixed episodes associated with bipolar
Adjunctive treatment of major depressive disorder
Irritability associated with autistic disorder
Treatment of Tourette’s disorder

Per Red Book, the lowest average wholesale price for multiple strengths (2mg to 30mg) of Aripiprazole dropped from the $30 to $36 range to a range of $0.07 to $0.17 per dose, an almost 100% price reduction.

Tower Action in Response

Because Tower’s system tracks all medications allocated in MSA reports, we have already pulled reports from the past two years that allocated these medications and advised clients of the potential for MSA reductions. You can also contact us to determine whether a particular MSA qualifies for MSA reductions. Revisions to the MSA can be done now or prior to MSA submission to CMS.

Please contact Dan Anders, Tower’s Chief Compliance Officer, at Daniel.anders@towermsa.com or (888) 331-4941 with questions.

Need a Medicare Set Aside Second Opinion?

October 27, 2020

nurse conducting research for a Medicare Set Aside Second Opinion in a manual

Has a Medicare Set Aside ever disrupted one of your settlements? Any one of these things — unexpected medical, surgical or pharmacy costs, compliance issues, the way MSA administration will be handled, or the presence or absence of a structured settlement–can halt negotiations.

Tower addresses cost drivers and deals with compliance situations long before preparing an MSA, so our clients don’t have to worry about MSAs impeding settlements and injured workers can be assured that their future medical needs will be met .

However, recently we’ve been asked to review MSAs prepared by other companies and found significant cost drivers and other obstacles to settlements. Fortunately, our free Medicare Set Aside Second Opinion service saved the settlements and helped to secure claim closures.

Medicare Set Aside Second Opinion Case Study

Here’s one case. Based on her experience with managing a claim and its costs, an adjuster thought the $220,000 MSA produced by another MSP provider was too high and asked us to review it.

Following our standard workflow for new MSAs, our Intake Team compared the MSA’s “accepted body parts” against the client’s claim system and found significant discrepancies.

The MSA allocated for a lifetime’s supply of sertraline, a drug used to treat anxiety and depression. However, “psyche/stress” was not an accepted body part and the workers’ comp insurer had not been paying for it.

Tower drafted a Body Part Letter that clarified the compensable conditions and specified those that were not accepted by or paid for by the insurer. Removing the drug from the allocation saved more than $58,000.

This 2^nd Opinion review also detected recommendations for inappropriate medical treatment, including an unnecessary bladder surgery. Our Physician Follow Up Service – available at no extra cost to our clients – contacted the physician and obtained written confirmation of this, reducing the allocation by another $37,000+. We also obtained a rated age from K.P. Underwriting that further reduced the treatment and prescription cost over life expectancy. The total savings came to over $98,000.

MSA Value is in Claim Closure

How could we do this when the other provider couldn’t? It comes down to our philosophy and attitude.

Tower does not treat MSAs as commodities. Instead, we recognize that the real business value of an MSA is in its ability to facilitate claim settlement and closure.

Our role is to collaborate with clients to analyze and assess risk, review medical and pharmacy records to determine Medicare exposure, intervene when treatment changes are needed, and recommend the appropriate time to complete the MSA.

In short, we proactively work to reduce costs and posture files for settlement.

How We Achieve Settlement Success

We created MSA best-practices technology and continually update it to make sure we can always accurately allocate the MSA without overfunding. Our MSP Automation Suite contains the very latest CMS coverage, coding and individual state pricing data. We measure everything and analyze CMS responses line by line so we know what the agency will accept, what it won’t and when to push.

We know where cost drivers tend to hide, and our Intake and Clinical Teams are trained to hunt them down. We know which interventions to apply at the right time to reduce costs. We know how to phrase treatment and pharmacy changes and supply the precise documentation CMS needs to approve the MSA.

And we do all this the first time around, so you won’t need a second opinion.

With Tower, payers can enter settlement negotiations with realistic MSAs that they can explain and defend. (We’ll participate in these negotiations if you’d like.)

Settle well the first time with Tower. But, if you have a questionable MSA, let us give you our free 2^nd opinion. Download more information here or refer an MSA for a 2^nd Opinion by contacting our Intake Team at 888-331-4941 or referrals@towermsa.com.

CMS Adds New Pricing Resource to WCMSA Reference Guide

October 14, 2020

stethescope on a Workers’ Compensation Medicare Set-Aside Arrangements

In a recent update to its WCMSA Reference Guide, the Centers for Medicare and Medicaid Services released a state-by-state list of the major medical centers it uses for pricing future medical expenses in proposed MSAs. This zip code-based list (See Appendix 7 of the guide) will help MSA preparers and submitters more accurately price surgical procedures, including spinal cord stimulators and intrathecal pumps, per CMS requirements.

Background

From the reference guide:

Hospital fee schedules are currently determined using the Diagnosis-Related Groups (DRG) payment for the median major medical center within the appropriate fee jurisdiction for the pricing ZIP code, unless otherwise defined by state law (see Appendix 7).

While that sounds good, until this update, no one but CMS and the Workers’ Compensation Review Center (WCRC), which reviews submitted MSAs for CMS, knew for certain the major medical center.

Nonetheless, Tower’s experienced clinical team has historically been successful in identifying appropriate facility pricing, thus avoiding significant variances between the proposed surgical pricing and the CMS calculation. The release of the list removes any remaining uncertainty.

Practical Implications

The list of major medical centers should eliminate one area of variances in surgical pricing. (Variances can still occur based upon differences in the type of surgery allocated or the components of the allocated surgery.) In short, it should lead to more accurate pricing surgical procedures in proposed MSAs and reduce MSA counter-highers.

The list of major medical centers has been published as part of the reference guide and also within the Workers’ Compensation Medicare Set-Aside Portal (WCMSAP).

As a member of the National Alliance of Medicare Set-Aside Professionals, now the National MSP Network (MSPN), Tower has consistently advocated for the release of this list. We appreciate the efforts of MSPN leadership to pursue this with CMS management.

A big thank you to Steve Forry and John Jenkins at the CMS Division of MSP Program Operations and to the WCRC for their work to assemble and release this information for public use.

If you have any questions, please contact Dan Anders, Chief Compliance Officer, at Daniel.anders@towermsa.com or 888.331.4941.

NAMSAP Bulletin Highlights Meeting with CMS on Liability MSA Reviews

August 16, 2018

man holding transparent icons of people with stakeholder in the center

Recently, the National Alliance of Medicare Set-Aside Professionals (NAMSAP) released a Special Edition Bulletin providing insight into a meeting between CMS and NAMSAP representatives on the topic of the planned expansion of the Workers’ Compensation MSA review process to liability MSA Reviews. NAMSAP’s April 2018 meeting was one of several with stakeholder organizations.

Your writer was one of the NAMSAP representatives who had the privilege of meeting with CMS to hear and discuss how such a Liability MSA Reviews may work. Mr. Tom Stanley, the Co-Chair of NAMSAP’s Liability Committee provided a summary of the following meeting highlights in the bulletin:

CMS stated they have an 18-month timeframe (from April 2018) before it rolls out a LMSA Review program.
The program would be voluntary.
CMS has indicated that their enforcement mechanism is the denial of services.
CMS felt strongly that the injured party must receive something (free and clear) through settlement.
CMS would not review an LMSA until Settlement has been reached.
CMS feels a LMSA is exclusively the responsibility of the plaintiff.
Regarding LMSA’s, CMS made it clear that the defendant(s), and their insurers, are not a target.
Medicare pricing of services was discussed.
CMS does not feel it can mandate professional administration.
CMS would publish a LMSA Reference Guide.
Eligibility remains the same as the current WCMSA system – Medicare beneficiaries or injured parties who have a reasonable expectation of Medicare eligibility within 30 months. Per statute, Medicare’s interest must be considered in every claim.
A workload threshold of $250,000 is anticipated – “NO SAFE HARBOR”. This level mirrors the $25,000 workload threshold for WCMSA’s.
For settlements between $250,000 and $750,000 threshold, CMS approval is available and encouraged by CMS. CMS would apply “a formula” to determine the LMSA amount. Starting with the total settlement amount, CMS would subtract certain expenses and apply the discount factor to total settlement.
Above $750,000 level is a full commutation. A traditional MSA would be prepared and, if submitted to CMS, evaluated by CMS for adequacy.

As Mr. Stanley advised, “everything discussed in the meeting was subject to change and related to liability Medicare Set-Asides only.” I would like to emphasize that point as well. You should not in anyway take the above points as final, rather they are points of discussion as CMS continues to listen to stakeholders and assess the best method for protecting Medicare’s interests in post-liability settlement injury-related medical.

Importantly, CMS realizes that in protecting those interests an eventual voluntary LMSA review process must continue to provide an incentive for the parties to settle their case. Consequently, some type of apportionment to ensure the plaintiff receives a portion of the settlement monies is expected in any final review process.

NAMSAP will to continue to dialogue with CMS and also discuss with its membership, both through a webinar and at the annual conference, the points presented by CMS. Given the launch of a CMS LMSA review process is not expected for some time, Tower MSA Partners will shortly be releasing a white paper on best practices for addressing future medicals in liability settlements.

If you have any questions or would like to discuss the topic of LMSAs further, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or Daniel.anders@towermsa.com.

Related:

Liability Settlement Solutions

New CMS MSA Review Contractor: Different Name, Same Policy and Procedures

March 7, 2018

While the review contractor is changing, the Workers’ Compensation Medicare Set-Aside (WCMSA) review policies and procedures remain the same. This was the message related to attendees of the Workers Compensation Review Contractor (WCRC) transition webinar held by CMS, yesterday, March 7, 2018. The purpose of the webinar was to introduce the WCMSA community to the new WCRC and provide information on the transition from Provider Resources, which ceases its work on March 16, 2018, to Capitol Bridge, which commences its work on March 19, 2018.

John Jenkins, CMS’s Health Insurance Specialist overseeing the WCRC contract, led off the presentation and then turned it over to Holly Haven, Capitol Bridge’s WCRC Project Director. Ms. Havens provided the following key information:

What is Not Changing

As our program matures, we will strive to improve both the quality of our work and the timeliness in which cases are completed through automation and our continual improvement focus.

The review and decision making process will remain the same.

WCMSA proposals will continue to be submitted through the portal or by mail to the same Oklahoma City address.

All established timeframes remain the same.

All inquiries will be handled by staff in our Pittsford, NY office, and customer service will be a priority.

Inquiries may still be communicated via telephone.

In summary, Capitol Bridge will continue to be guided by the guidelines laid out in the CMS WCMSA Reference Guide and maintain the 20-business day turnaround time for review of a WCMSA as required by CMS.

What is Changing

Processing of all cases will be handled out of their facility in Pittsford, NY.
New phone number for the WCRC is (833) 295-3773 with customer service hours from 9am to 5pm EST.
Email address for the WCRC is WCRC@capitolbridgellc.com
Fax number is (585) 425-5390

In the Q&A session following the formal presentation additional information was provided:

WCMSAs will be reviewed by RNs with the MSCC credential.
The WCRC staff includes attorneys, physicians and pharmacists.
WCMSA proposals which have not been reviewed by the outgoing contractor by March 16 will be transferred to the new contractor for review.
In response to a question as whether to expect an MSA backlog such that review times will lengthen, CMS noted that the outgoing contractor was typically completing its reviews in less than the required timeframe of 20 days.The implication then is the new contractor may be using the full 20 business days to complete its review.
A question was raised regarding Liability MSAs, but no answer was given as the webinar was not for the purpose of addressing policy questions.

While the CMS WCMSA policy remains the same, the interpretation and implementation of that policy will soon be in new hands. Tower MSA will be closing monitoring WCMSA reviews through Capitol Bridge to ascertain what, if any, differences can be identified in the allocation of care in the WCMSA compared to the prior contractor. Variances outside of established CMS guidelines will be challenged.

If you have any questions, please contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or Daniel.anders@towermsa.com.

What Do Medicare Part D, Medicare Set-Asides and Parenting Have in Common?

March 2, 2018

parenting - father hugging two young children

For those who have raised children, or are in the process of doing so, one of our biggest challenges is to instill in our children some sort of positive decision-making paradigm in our children. You can call it religious values, moral absolutes, grounding, or just plain common sense, but as parents, we set boundaries (rules) from the earliest age, and try to be consistent in our enforcement. Our children may think we’re just mean, but this is a price we’re willing to pay if it helps establish an internal barometer to use when approached by people, thoughts and ideas that challenge them.

In raising my three children, one of the techniques I used was a simple, banded bracelet with the acronym, “WWJD” that is, What Would Jesus Do? This was a popular phrase in the Bible Belt where we lived. I asked that they look at the bracelet each time they were faced with an obstacle or asked to do something that didn’t quite feel right. One afternoon, my son was telling a story about something that happened at his elementary school that caused him to look at his bracelet. I was so pleased when he said he actually looked at it! He then responded, “Mom, I tried to decide what Jesus would do, but had a little bit of a tough time, so I switched it in my head to “WWMD”, and I knew exactly what Mom would do!” I couldn’t help laughing, but based on his response to the situation, my simple reinforcement worked. At the same time, this also reminded me that our actions speak much louder than our words….children will “do as we do” long before they will ”do as we say.”

How does this relate to Medicare Part D and Medicare Set Asides?

Each day, one of my first activities is to review my Google Alerts to look for news about NGHPs, Medicare Secondary Payer issues and opioids. This morning, the article that drew my attention was from MedPageToday.com entitled “CMS Proposes Opioid Prescribing Limits for Medicare Enrollees.” My first thought in reading the article was that this was great news.

“We are proposing important new actions to reduce seniors’ risk of being addicted to or overdoing it on opioids while still having access to important treatment options,” said Demetrios Kouzoukas, CMS deputy administrator and director of the Center for Medicare.

“We believe these actions will reduce the oversupply of opioids in our communities.”

Key components of the proposal include:

Hard formulary levels at pharmacies that would restrict the amount of opioids beneficiaries could receive
Establishment of a safety level of 90 morphine mg equivalent (MME)
Limiting the # of pills and days supply in an initial prescription for acute pain

According to Kouzoukas, “these are triggers … [that] can prompt conversations between physicians, patients, and plans about appropriate opioid use and prescribing.”

I then realized what CMS was doing. CMS was setting boundaries to help physicians, patients and plans make better decisions about opioid use…. the same type of boundaries I set for my children so they would make better decisions as adults. What a great idea! If physicians, patients and plans (both Medicare and workers’ compensation) can dialogue before Rxs are filled, better decisions about opioids are inevitable and the frequency of opioid addiction will diminish.

So what’s the problem?

Unfortunately, there remains a problem in the world of workers’ compensation and the WCMSA review process. While I applaud CMS’s effort, there remains a strong disconnect between CMS’s proactive stance on opioid limitations with Medicare Part D and its opioid-friendly review process for WCMSAs. At the same time, I must also admit to a similar disconnect between what happens with prescription opioids during the life of a workers’ compensation claim and what we are asking CMS to do when reviewing the MSA at settlement time. Are we asking CMS to “do as I say,” instead of providing the example of “do as I do?”

Can we ‘connect the dots’?

After reading the article, I realized that as an MSP compliance company that has integrated opioid triggers into its Pre-MSA Triage and review process since Day #1, Tower now has a new weapon in its arsenal to assist clients to identify pharmacy obstacles as early possible, and to address issues of inappropriate drug use. By advising clients to establish and enforce “CMS-like” boundaries at Rx fill time, we have the potential to reduce opioid use in workers’ compensation just as CMS seeks to accomplish with Medicare Part D. Through such efforts, we can reinforce dialogue between physicians, claimants and workers’ compensation plans before the Rx is filled, and hopefully facilitate better decisions about the first opioid Rx.

And as for the disconnect between Medicare Part D and the WCMSA review process, we cannot force CMS to change its WCMSA prescription drug review process. We can, however, leverage CMS’s expertise to support better outcomes with Medicare beneficiaries, MSAs and settlements by mirroring their Medicare Part D policies and processes within the workers’ compensation PBM model. In doing so, we provide CMS with a positive example of their own recommendations implemented successfully, and can hopefully encourage them to “do as we do.”

Conclusion

So how do we affect change in opioid prescribing habits in workers’ compensation? It’s as simple as the bracelet I gave my children. From Day #1 of a claim involving an active or soon to be active Medicare beneficiary, we continually ask the question, “What Would Medicare Do?” and we execute.

CMS Statement on Opioids and WCMSAs Provides Little Clarity as to Future Review Practices

December 27, 2017

In a recent post on its website, the Centers for Medicare and Medicaid Services (CMS) acknowledged the opioid crisis in this country, but provided little clarity as to how it intends to address this crisis in its review and approval of Workers’ Compensation Medicare Set-Asides (WCMSAs).

The 12/14/2017 statement provides as follows:

CMS understands the concerns regarding the opioid crisis occurring in the United States. We are committed to ensuring the determination of Workers’ Compensation Medicare Set Aside Arrangement (WCMSA) amounts are an adequate projection of claimant’s needs for future medical services and prescription drugs. CMS continually evaluates all policies and procedures related to WCMSA amounts. Any changes that Medicare pursues related to this issue will be reflected in our WCMSA amount review process.

More information on the WCMSA process can be found in the WCMSA Reference Guide.

We assume the above statement may be, in part, related to the California Workers Compensation Institute (CWCI) study finding nearly 70% of CMS approved MSAs require funding of opioids over an injured worker’s life expectancy (See our article, Opioids in the MSA . . . Challenges and Strategies, where this study is discussed). While we credit CMS’s Office of Financial Management (the CMS department which oversees the WCMSA review program and contractor) with recognizing the opioid crisis, what is left uncertain is what specific actions CMS is to take to address this problem in WCMSAs. Instead, CMS provides a vague statement indicating any changes related to the opioid issue will be reflected in its WCMSA review process and then cites its WCMSA Reference Guide.

CMS does not cite to a particular section of the guide, but we assume the following would be the most pertinent:

Drug Weaning/Tapering

Drug weaning commonly occurs with pain medications, such as opioids, especially when claimants’ work injuries improve. The WCRC takes all evidence of drug weaning into account, although in most circumstances the WCRC cannot assume that the weaning process will be successful. Usually, the latest weaned dosage is extrapolated for the life expectancy, but again, they assess all records when making these types of determinations. Where a treating physician believes tapering is possible and in the best interests of the claimant, CMS will consider all evidence in making a WCMSA determination, including medical evidence of current actual tapering.

Based upon the Tower MSA CMS Reconciliation Module, which reviews all MSA determinations for the purpose of identifying trends in CMS WCMSA allocation practices, CMS consistently disregards any active weaning or tapering process or scheduled reduction to future medication use and instead takes the latest dosage found in the medical records and/or prescription history and extrapolates it over the claimant’s life expectancy.

The question then is whether this December 2017 statement signals a departure by CMS from these past practices to a policy which will now give more weight to a weaning or tapering schedule from the treating physician which translates into limitations on the allocation of opioids in the WCMSA. We will take a wait and see approach in this regard.

It should be understood though that even were CMS to limit the allocation of opioids in the WCMSA, this in no way prevents the claimant from using the WCMSA funds for filling opioid prescriptions in excess of what is allocated. The reason being is CMS rules for administering a WCMSA allow for the funds in the account to be used for any Medicare-covered injury-related treatment or medication. As such, with a valid prescription, there is nothing to stop a claimant from converting funds allocated to a surgery to pay for medications, including opioids. It will remain then in the hands of the claimant’s medical provider to wean the claimant off opioids and other medications not intended for long-term use.

Practical Implications

As always, we will monitor CMS WCMSA determinations for signs of any changes to their allocating practices for prescription medications, especially in regard to opioids. However, we have to assume that until we see any changes, CMS will continue to follow its policy of taking the most recent medication dosage and frequency and pricing it out over the claimant’s life expectancy.

What this means then is opioid misuse must be addressed prior to submission of a WCMSA to CMS with any actual elimination of opioids documented in the medical records prior to submission of the MSA. Tower MSA is committed to working with our clients on reduction and elimination of opioids prior to CMS submission. Our Pre-MSA triage service is uniquely designed to identify such MSA cost-drivers and recommend intervention strategies, including escalating the matter to our Internal Pharm. D. for direct contact with the treating physician. Resulting reductions in opioid use limit MSA costs to the employer and provide for a healthier injured worker over his or her lifetime.

Please contact Dan Anders at Daniel.anders@towermsa.com or (888) 331-4941 with any questions regarding CMS practices in allocation of prescription medications in the WCMSA.