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

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Porter Leslie – (339) 223 9857 or
Jayson Gallant – (339-234-3420) or

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Can A Medicare Beneficiary Obtain Coverage Under ACA Compliant Major Medical Plan?

April 21, 2014

This was a question raised recently within the NAMSAP (National Association of MSA Professionals) listserv.   While it seemed simple and straightforward, it generated so much interest from so many within our organization, I thought it worthy of a blog post to communicate both dialogue and  dilemma .

Setting the Stage

n 2011, a medical liability claim was filed when a first time mom lost her child 19 weeks into pregnancy due to a missed diagnosis of sepsis.  Not only did she lose her child, she also lost both legs below the knees, nine of her ten fingertips and now has only 25% kidney function.  In spite of the horrific outcome resulting from the misdiagnosis, the woman has a marvelous attitude about life.  Having received SSDI benefits for almost 24 months, she will become Medicare eligible in the next six months.

As a result of her pending Medicare beneficiary status, plaintiff attorney requested an MSA allocation.   The MSA was finalized with total future medical and pharmacy costs projected at approximately $1,000,000.  Settlement negotiations remain ongoing.  At this point, however, defense counsel believes that an MSA is not necessary noting that claimant could easily obtain an ACA compliant, standalone major medical policy during an open enrollment period.

If an ACA compliant policy is an appropriate alternative to an MSA to address future medical treatment, then what’s to stop all injured claimants that are Medicare beneficiaries, whether involved in a workers’ compensation liability claim, from doing the same, effectively ignoring the MSP statute’s legal obligation to consider and protect Medicare’s future interests?  The question at hand….

If an injured claimant can obtain ACA coverage at any time, before or after Medicare eligibility, why bother with a MSA? 

Can A Medicare Beneficiary Obtain ACA Coverage?

The short answer, per 45 CFR 148.103, is that ACA policies can only be provided to “eligible individuals”, and a person  who is eligible for Medicare is not eligible for coverage under the ACA.

From the ACA FAQ link, we find the following (

Does Medicare Meet ObamaCare’s requirement that all Americans have health insurance?
If you have Medicare Part A (Hospital Insurance) or Medicare Part C (Medicare Advantage, you’re considered covered and won’t need a Marketplace plan. Having Medicare Part B (Medical Insurance) alone doesn’t meet this requirement.

Can I get a Marketplace Plan in Addition to Medicare?
No. It’s against the law for someone who knows that you have Medicare to sell you a Marketplace plan. This is true even if you have only Part A or only Part B.

If you want the technical version, go to for specific guidance.  And in Medicare’s own words, the relationship between ACA and Medicare is explained

MSP Compliance Within An ACA Environment… Back to the Beginning 

While the answer appears to be simple in this case,  the fact that such a recommendation was made by an attorney should raise a flag to all who live daily in the MSP compliance arena.  With so many unknowns surrounding the ACA, “Will a healthier workforce yield fewer claims and a faster return to work?  Will the ACA create cost shifting from workers’ compensation to group health?   Will the scarcity of primary care physicians impede carriers’ ability to deny questionable claims as quickly as possible?”, miscommunication and confusion are inevitable.  If for no other reason than clarity for ourselves and our clients, this is worthy of our attention.

How do we overlay what we’ve learned in recent months about the ACA with our understanding of the mandates imposed by the MSP statute so that we can educate, advocate and set expectations for our clients?  The first step, I believe, is to go back to the the beginning, and to remind ourselves of the intent of the MSP statute… to protect Medicare from making payments it shouldn’t make, regardless of whether payment represents past, present or future exposure.

The MSP statute mandates that:

  • Payments made ‘conditionally’ by Medicare for treatment for a workers’ compensation, liability, no-fault claim that was reasonably be expected to be paid by an entity other than Medicare be recovered;
  • Medicare’s interests be considered and protected when settling a claim when any portion of the settlement dollars is intended to cover future medical treatment for a current or pending (within 30 months) Medicare beneficiary;
  • All Responsible Reporting Entities (payers) report, through MMSEA Section 111 Mandatory Insurer Reporting, the total settlement amount when a TPOC event (Total Payment Obligation to Claimant) occurs.

These are the pillars of MSP compliance, and represent the filters we should use each time we contemplate settlement  in a case that involves a Medicare beneficiary.  Does the action being proposed adequately protect Medicare’s past, present and future interests?

In this situation, we find ourselves at a disadvantage as we know little from the ACA as to its prospective relationship to the non-group health environment.  What we do know, however, and the looming danger, is that the ACA guarantees no exclusions for pre-existing conditions and no lifetime limit for medical care.  Its boundaries, therefore, are non-existent.

How Will the Government Respond?

With limitless dollars for medical treatment under an ACA plan, a reasonable expectation is that the US government will attempt to recover each and every penny when treatment of an ICD9 code can be linked to a workers’ compensation, liability or no-fault claim.  As such, it seems logical that an MSA is the only way to ensure that Medicare’s past, present and future interests are appropriately protected.

To shift the burden to a health exchange supports neither the recovery of past payments nor the means to provide future protection for those government payments made on behalf of the Medicare beneficiary (Medicare Part  A & B).  To complicate the equation even further, if there is a third party Advantage C plan in the picture, those commercial dollars that partially fund the care are also at risk.  As such, the commercial carriers will seek every available dollar on a case such as this where lifetime exposure exists.

Today’s Conclusion

The introduction of ACA within the framework of MSP compliance is certainly an issue that requires further research, and one I’m pleased to see NAMSAP follow.  At this point, unless something comes to light to dispute the information included above, it would appear that ACA plans and Medicare will exist mutually exclusive of each other.  As such, to comply with the intent of the MSP statute, any settlement pursued for a Medicare beneficiary, regardless of total settlement dollars or the availability of ACA plans, should include an MSA.

ACA policies can only be provided to “eligible individuals”. 45 CFR 148.103 provides that someone who is eligible for Medicare is not eligible for coverage under the ACA.