Tag: MSP Compliance

Is The Tidal Wave of CMS Development Letters Behind Us?

May 14, 2014

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

Where Do I Begin?

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

An Industry Moved to Action

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

Communication Through Data Analytics

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

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

Lessons Learned?

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

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

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

 

 

 

 

CMS New WCMSA Decision Memo: TENS Units: Not Appropriate for Chronic Low Back Pain

October 5, 2012

Tens units not appropriate for low back pain
Tens units not appropriate for low back pain
The Centers for Medicare and Medicaid (CMS) issued a new memorandum that will affect pricing determinations for TENS (Transcutaneous Electrical Nerve Stimulation) units for the treatment of Chronic Low Back Pain (CLBP) included within the Workers’ Compensation Medicare Set-Aside (WCMSA) that have been submitted to CMS for approval.

On June 8, 2012, CMS issued a new Decision Memo that defined CLBP as “an episode of low back pain that has persisted for three months or longer; and is not a manifestation of a clearly defined and generally recognizable primary disease entity.” CMS further stated that a TENS unit was not “reasonable and necessary for the treatment of CLBP under section 1862(a)(1)(A) of the Social Security Act.”

TENS is the use of stimulating pulses across the surface of the skin produced by a device to stimulate the nerves for therapeutic purposes. TENS help stimulate your body to produce higher levels of Endorphins. The TENS units are small, battery operated devices that deliver these stimulating pulses across the surface of the skin. It has been an ongoing dispute over the years as to whether TENS units do more than act like placebo’s, and whether they actually treat and cure CLBP.

CMSs New Pricing Determination will affect the WCMSA’s proposal as follows:

  1. Workers’ Compensation cases settled prior to June 8, 2012:

    “For those Workers’ Compensation cases settled prior to June 8, 2012, and where the settlement included pricing for TENS for CLBP, CMS will consider funds spent for TENS for CLBP by beneficiaries and claimants as being an appropriate expenditure of funds as part of the WCMSA.”

  2. Workers’ Compensation Cases Settled After June 8, 2012:

    “For those Workers’ Compensation cases that were not settled prior to June 8, 2012, and where the WCMSAs proposal includes funding for TENS for CLBP as part of the WCMSA, CMS will re-review the cases and remove pricing for TENS for CLBP. (Regional Offices shall obtain from Submitters requests for a case re-review, along with a signed statement indicating a settlement had not occurred prior to June 8, 2012.)”

It is important to note that in the event CMS does re-review a WCMSA for removal of a TENS unit for CLBP, the claimant may NOT use the funds from their WCMSA to pay for the TENS for CLBP. If a claimant uses the funds for the TENS, this would result in an inappropriate expenditure of funds.

For additional questions on the use of TENS units as treatment for chronic low back pain, and its implications on future medical treatment and the WCMSA, please contact Tower MSA Partners at 888-331-4941 or email us at info@towermsa.com. For the full text of the CMS Decision Memo, see Decision Memo for Transcutaneous Electrical Nerve Stimulation (TENS).

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

June 18, 2012

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

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

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

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

The seven (7) proposed options include the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Option 6. The Beneficiary Makes an Upfront Payment.

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act: 30 Days and Counting…. Can it Succeed?

Introduced into the US House of Representatives on April 27, 2012, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012 (HR 5284) aims to streamline the settlement of workers’ compensation agreements by creating an exception to Medicare secondary payer requirements. The bill also provides language that could ease the path toward satisfying these requirements by using qualified Medicare set-aside arrangement (MSA) under these agreements.

Designed to apply to certain workers’ compensation settlements agreements, the bill proposes changes if any of the following criteria is present:

  1. The total settlement is $25,000 or under;
  2. The claimant is not eligible for Medicare at settlement date and is not expected to be eligible within 30 months;
  3. The settlement agreement does not limit or eliminate the claimant’s right to payment of future medical bills;
  4. The claimant is not eligible for future medical bill payments under the settlement.

US representative David Reichert (WA-8) introduced the bill in an attempt to improve the set-aside process for workers’ compensation claims. Current settlements that overlap with Medicare coverage create a lengthy review period on what constitutes the set-aside coverage amounts.

Currently, HR 5284 has been referred to the Subcommittee on Health for review. The bill has gained heavy support from industry organizations, including American Insurance Association (AIA), American Association for Justice (AAJ), American Bar Association (ABA), National Council of Self Insurers (NCSI), Property Casualty Insurers Association of America (PCI), UWC – Strategic Services on Unemployment & Workers’ Compensation (UWC), Washington Self-Insurers Association (WSIA), and Workers Injury Law and Advocacy Group (WILG).

Part of the problem may be that the legislation tries fixing what isn’t governed. There is a lack of any real definition of MSA from a regulatory sense. Would wrapping laws around an undefined practice work?

Also, industry buzz suggests that legislators are treating workers’ compensation issues much like they would group health issues. Also, detractors of the bill believe there is little to address the calculation of allocation amounts and too little consistency in understanding and applying CMS policies.

The success of H.R. 5284 will depend largely on how well the legislation understands the MSA environment. While the idea may be a good one, the actual practice may fall short of its intended goal.