Good news/Bad news

In its continued efforts to reduce the amount of conditional payments expended annually on cases in which Medicare is secondary to Workers' Compensation,  Medicare is set to implement a new MSP code next Monday,  July 6th.  This code will be used in Medicare's claims processing system to specifically identify cases on which the Centers for Medicare and Medicaid Services (CMS) have reviewed a Workers' Compensation Medicare Set-Aside (WCMSA) arrangement.  With the advent of this new code, CMS will now have the capability to deny payments that are related to the diagnosis(es) coded in any given WCMSA arrangement.  All physicians, providers, and suppliers who bill Medicare contractors (including carriers, DME contractors, regional home health intermediaries, and Part A/B Medicare administrative contractors) will be subject to this new coding procedure.  As such, proper coding of the diagnosis(es) in every WCMSA arrangement submitted to CMS is now even more critical.  There is no discussion within this new implementation process regarding application of this new MSP code to MSA arrangements on liability or no-fault cases.

The good news for Workers' Compensation insurance professionals is this:   there should begin to be a decrease in the amount of conditional payments made on your Workers' Compensation claims.   On the other hand, the bad news for Medicare beneficiaries is that they will need to be even more vigilant in administering their WCMSA accounts post-settlement.  Medicare will be sending notices of denial directly to beneficiaries for claims received that appear to be related to WCMSA diagnosis(es) advising them that "Your claim has been denied by Medicare because you may have funds set aside from your settlement to pay for your future medical expenses and prescription drug treatment related to your injury(ies)."

One additional point to ponder….How will this new MSP coding procedure, which will identify cases on which CMS has reviewed a WCMSA,  intersect with the Mandatory Insurer Reporting requirements which will identify for Medicare all Medicare beneficiaries who have received a settlement, judgment, or award?  The days of evading or avoiding MSP issues are quickly coming to an end!

For more information, please see www.cms.hhs.gov/MLNMattersArticles/downloads/MM5371.pdf

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While recently trying to find out why there was not more uproar in the insurance industry regarding the Section 111 reporting requirement when the MMSEA of 2007 was proposed to Congress, we found that perhaps it was because no one probably even knew what was coming. Note to would be lobbyists: If you ever want to sneak something through the legislature, do so right before the Christmas break. Take a look at this time line…who says our government can't get anything done?

S.2499
Title: A bill to amend titles XVIII, XIX, and XXI of the Social Security Act to extend provisions under the Medicare, Medicaid, and SCHIP programs, and for other purposes.
Sponsor: Sen Baucus, Max [MT] (introduced 12/18/2007)      Cosponsors (1)
Latest Major Action: Became Public Law No: 110-173 [GPO: Text, PDF]

ALL ACTIONS:

12/18/2007:

Introduced in the Senate, read twice, considered, read the third time, and passed without amendment by Unanimous Consent. (consideration: CRS15834-15843; text as passed Senate: CR S15837-15843)

12/18/2007 5:56pm:

Received in the House.

12/18/2007 6:01pm:

Held at the desk.

12/18/2007:

Message on Senate action sent to the House.

12/19/2007 10:38am:

Mr. Pallone moved to suspend the rules and pass the bill.

12/19/2007 10:38am:

Considered under suspension of the rules. (consideration: CRH16842-16855)

12/19/2007 10:38am:

DEBATE - The House proceeded with forty minutes of debate on S. 2499.

12/19/2007 11:31am:

At the conclusion of debate, the Yeas and Nays were demanded and ordered. Pursuant to the provisions of clause 8, rule XX, the Chair announced that further proceedings on the motion would be postponed.

12/19/2007 4:22pm:

Considered as unfinished business. (consideration: CR H16900)

12/19/2007 4:29pm:

On motion to suspend the rules and pass the bill Agreed to by the Yeas and Nays: (2/3 required): 411 - 3 

12/19/2007 4:29pm:

Motion to reconsider laid on the table Agreed to without objection.

12/19/2007:

Cleared for White House.

12/27/2007:

Presented to President.

12/29/2007:

Signed by President.

12/29/2007:

Became Public Law No: 110-173.

Available at:  http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN02499:@@@X

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June 12, 2009

 

MEDVAL

8860 Columbia 100 Parkway

Suite 213

Columbia, MD 20777

 

RE: Claimant:

      Employer:

      DOA: 12/21/2004

      Our Claim Number:

 

Dear MEDVAL:

 

An initial MSA evaluation was done on this claim on January 7th, 2008 and a revision was completed on December 16th, 2008.

 

Since that time we have settled the indemnity portion of the claim. This appears to have had an effect on the need for medical treatment sought by the Claimant.

 

Will you kindly prepare another update so that we can investigate the possibility of settling medicals?

 

Sincerely,

Client

Note to CMS: This really happens....maybe it might be appropriate to allow for a re-evaluation of a previously approved MSA more often than never?

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On June 2, 2009, CMS published guidance for WCMSA submitters regarding prescription drug issues under the new independent review procedures effective June 1, 2009. In response to an obvious barrage of inquiries by the WC community since the AWP memo was released on April 3, 2009, CMS has addressed many of the issues that the memo raised. Despite the conciliatory tone, CMS has not really conceded to any of the issues raised.

CMS has stated essentially that it will consider any evidence presented with a WCMSA proposal, however absent a clear and definitive statement from the treating physician (bolded in the publication in case you overlooked it) supporting whatever you are trying to prove, it is not likely to consider your rational for not including a lifetime supply of all current drugs in use priced at AWP.

What CMS did remind us is that the Patel Memo said that WCMSAs are only appropriate after MMI has been reached, which explains a lot about the rationale behind some of its review policies. If at MMI with a permanent impairment, I guess the assumption is that  the drug regime is stable, consistent and unchanging. There should be no question of titration or termination of the drugs in question at the time of review. If it were only that easy. This type of naivety toward the insurance settlement process is why there is such a backlash against the WCMSA review process.

CMS continues to ignore the fact that the workers' compensation program is contentious and that very frequently the "medical evidence" that it is basing its opinions on is not truly reflective of the reality of the claimants' medical situation. In statement #3, CMS agrees to consider a tapering program if proposed by the treating physician. If claimant is at MMI with a stable need for his current meds, why is he suddenly able to taper in anticipation of settlement? CMS routinely ignores any evidence that at the time of submission claimant has virtually ceased treatment in anticipation of settlement and will require funding of a WCMSA based upon the past medical record. Accepting the treating physician's recommendations without question is like letting the claimant's attorney set the reserve on a claim or the defense attorney deciding to accept a settlement offer on behalf of the claimant. While you may get an accurate result on occasion, there might just be a little bias built into the process.

Other disappointing points of interest concerned patent expiration, off-label uses and DURs, none of which it appears will be genuinely considered considered despite CMS assurance to the contrary. The only scenario where it might be considered is if the treating physician convincingly makes a statement as to the applicability. We find it unlikely that a treating physician with 15 minutes to see a patient is going to take the time to clearly and concisely advocate for less treatment in the interest of documenting the medical record for MSA purposes.

CMS' stand is that anything can, and may, happen to an individual's pharmaceutical needs, however CMS has elected to err on the side that benefits it most and require the most costly funding scenario. With respect to off-label utilization, CMS correctly makes the point that it is legal to prescribe drugs off -label in the United States. The part they fail to realize is that many off-label uses would NOT be Medicare covered under the Part D program if the drug is not part of a formulary. More on this subject at a later time.

On the bright side, at least CMS answered one question. The MSA industry now knows that it may search through the hundreds of listings in Redbook for any given drug to seek out the least expensive NDC. We wonder if the WCRC will dedicate that much time to the task while it is independently pricing drugs? Should they fail to select the least expensive option, will that decision be subject to reconsideration?

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Below, please find and excellent case law summary by HPM&B regarding subrogation claims in personal injury settlements:

posted with permission of:

Heidell Pittoni Murphy & Bach LLP

99 Park Avenue

New York , NY 10016

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Recently a NAMSAP member posted a question to the membership about how he could start an MSA business and garner the attention of insurance company and attorney clients. I am not sure that this forum was the right place to solicit such information since a group of competitors is probably not the best place to get helpful information. But the question is valid and it reminds me of what has made MEDVAL successful over the years. Here is my advice to this gentleman.

1.  Be great at what you do - There is no substitute for experience and professionalism. Take pride in your work, develop the skills needed to do a competent job and always seek to improve your knowledge. The world is full of so called "experts", be the real thing and customers will find you.

2. Deliver exceptional customer service - Most businesses provide good service. But loyal clients are developed by going above and beyond the call of duty. That means answering a phone call after hours, working through the weekend to meet a mediation deadline and always delivering more than you promise or the customer expects.

3. Be a problem solver - Too many people in the world are content to let others figure out problems for them. Don't be one of them. If a client has a problem, YOU figure out how to help them solve it. And most of all, don't become the problem yourself as so many vendors in the MSA industry have historically done to the detriment of their businesses.

4. Never stand still - Business moves at the speed of light. While everyone is playing catch up, you need to deliver industry leading solutions and continually push the envelope of what is possible in your field. Innovation is possible, even in seemingly static industries like Medicare Set-Asides, structured settlements or custodial administration.

5. Develop a reputation for honesty and integrity - Always tell your clients the truth even when they aren't going to like it. A wise lawyer once said the hardest part about practicing law is telling a client something they do not want to hear. And always do what is in the client's interest even if it momentarily conflicts with your own. Successful businesses are built over the long run and clients have very long memories.

6. Be humble - No matter how successful you are there is always someone doing better. Be thankful for whatever business your clients entrust to you and appreciate the small customers as much as the big ones. I am reminded of a structured settlement company that always boasts about how much better they are than their competitors, how they only do the "big" cases, yet financially underperform year after year.  Maybe their hubris clouds their judgment about what value the market places on their services.

7. Treat your employees like the invaluable assets they are - Great service businesses are built with great people. Find the best people you can and pay them 10% more than the "market" rate. Great people deliver great results and are worth the extra money. Always appreciate that top performers have other places they can devote their time and energy.

8. Find customers that fit with your business philosophy - No one can be all things to all people so don't try. Decide what you are best at and go from there. For example, we never participated in the "guaranteed MSA" marketing and did not seek out clients that wanted a guarantee. Nor are we aggressively pursuing MMSEA reporting in exchange for a Medicare Set Aside relationship, exclusive or otherwise. That may have cost us some clients but we don't believe our clients best interests are served by these types of programs.

9. Treat your vendors and partners with respect - One thing I have learned over the years is that seemingly "unimportant" people/vendors can have a huge impact on the success of your business. If you treat everyone fairly and with respect, there may come a time when they are in a position to influence a potential customer to do (or not to do) business with you. Even if that is never the case, wouldn't you rather have more friends than enemies?

10. Learn to run a business - You don't need to have an MBA from Harvard but you do need to understand the fundamentals of business. You cannot accomplish Steps 1 - 9 if you can't attract customers or your paychecks always bounce. A fundamental understanding of finance, human resources, marketing, sales and operations is critical no matter what business you are in.  Many a business has been done in by an incompetent President or CEO who thinks that their "industry knowledge" is an adequate substitute for sound business practices.

And finally, if you don't love what you do, then become a jewelry designer or hedge fund manager….life is too short.

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

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Pharmacy Benefit Management

I again want to thank everyone who signed up for the Lorman teleconference. This was actually supposed to be a repeat performance of the call that took place on April 1, 2009, but given the new CMS mandates in the past 4 weeks, I really feel as if it was a totally different presentation. Hope you all found it helpful.

Answers to the questions posed utilizing the presentation tool online and via email are as follows. Please feel free to send any follow-up questions or let me know if I missed any. I am happy to help everyone understand this unnecessarily confusing issue a little better.

Can Medicare only seek reimbursement from carriers and self-insurers on settlements they have made?  Or can they also seek reimbursement for claims where no settlement was made?  For instance, a claimant may stop treating for a permanent partial injury, then while this individual is covered by Medicare, their injury is aggravated.  Can Medicare seek reimbursement for medical services under the Secondary Payers Act in this situation?

Medicare may only seek repayment once a liability settlement is reached because it does not have a claim until it arises by operation of law upon the making of the insurance payment. It may seek repayment on a WC or no-fault claim at any time the accepted claim is open. And if I understand your example, if there is no settlement in a liability claim yet that injury was exacerbated and required treatment later, I think it would depend on if the claim could still be pursued, i.e. statute of limitations run. I believe there are situations like with PIP coverage where they could continue to come back until the policy limit was exhausted but that is basically an open claim. If I didn't hit the answer, give me a little more clarification as to the type of claim and maybe I can try again.

We have a workers' compensation statute that requires the employer to remain responsible for medical benefits for life.  Does this eliminate the need for a MSA?  Also, after 3 years we can negotiate a settlement of future medical benefits.  Would the negotiation of that settlement bring about MSA requirements?

If medicals are open for life, then Medicare has no exposure and an MSA is not needed. I'm not certain if you are referring to the same right to lifetime meds in the second part of your question, but in any situation where you can terminate your responsibility for future medical treatment and there is treatment reasonably anticipated and related to the claim that would otherwise be covered by Medicare, then yes an MSA situation would arise.

I defend major personal injury cases.  Am I correct that I only need to provide medicare setasides when the plaintiff is already a medicare beneficiary and the settlement exceeds $25,000 or when there is a reasonable expectation of medicare entitlement in the next 30 months and the settlement exceeds $250,000?  Reasonable expectation of medicare entitlement meaning the plaintiff has applied for SSDB or still has appeal/re-filing rights, is 62.5 years old or has end stage renal disease but does not qualify for medicare?

You are confusing the needs for an MSA and the ability to have CMS review a WCMSA. The criteria that you set forth in your question are review thresholds for the contractor that reviews proposed MSAs on behalf of CMS and have nothing to do with the need to protect Medicare's interests in a settlement. An MSA is needed in any settlement where an injured party has foreseeable future medical treatment related to your claim that will arise at a time when he is Medicare eligible and Medicare would otherwise cover that treatment.

Where can I find the final order in CARES, INC. v. Leavitt?

2008 WL 4737164 (E.D. CA)  (10/29/08)

Work comp-If public agency payer continues all future medical payments does medicare become a secondary payer? Is MSA required in that scenario?

No, you only need an MSA if you terminate your responsibility for medical.

If you have medical payments coverage in a non-liability case and the claimant has out of pocket expenses can you pay the claimant his bills and then the balance to Medicare

When you reference CMS Memo of 4/21/03, in which of the internet resources would we find that?

Scroll to the bottom of this link to Downloads:

http://www.cms.hhs.gov/WorkersCompAgencyServices/01_overview.asp

Where one defendant (and insurer) settles out of a case ahead of the other defendants, does that settling defendant need to satisfy (all or part of) the Medicare lien out of that separate settlement?

How do i sign up for the subscription service you discussed, and can i subscribe if i'm not a reporting employer (claimant's counsel)?

For updates related to CMS review process for WCMSAs, scroll to the bottom of this page to links inside CMS:

http://www.cms.hhs.gov/WorkersCompAgencyServices/01_overview.asp#TopOfPage

For updates related to MMSEA NGHP reporting, scroll to the bottom of this page to links inside CMS for email updates and notifications:

http://www.cms.hhs.gov/MandatoryInsRep/01_Overview.asp#TopOfPage

If statute of limitation passes on 3rd party case, can medicare still go after Liability Insurance company?

If the SOL is over, there is no legal liability of the insurance company to pay on the claim regardless of who brings it. Even if they are invoking their subrogation rights, they are still subject to the same laws that govern the claim. However because Medicare's rights to repayment arise out of operation of law based upon an insurance payment, if no payment (let alone claim) occurred, those were just ordinary Medicare payments.

In a state where medical benefits for workers compensation remain the responsibility of the employer by statute for life, how does this apply?

You do not need a MSA but you will have to report the ORM (ongoing responsibility for medical) under the MMSEA.  You only need to protect Medicare's interest under the MSP statute if they have an interest to protect. If medicals are open and open for life, I'd say Medicare is safe.

Who should we contact to get permission to settle (phone number, address)?

You don't need CMS's permission to settle a claim as that is a legal right your have absent any overlaying Medicare issues that may be tied to it.

You can obtain CMS's opinion in a WC settlement as to the adequacy of an allocation set aside for future related medicals that would otherwise be covered by Medicare.

CMS
c/o Coordination of Benefits Contractor
P.O. Box 33849
Detroit, MI 48232

You can notify the MSPRC that a settlement has or will happen and request information about monies that may be owed Medicare from the settlement.

Medicare—Coordination of Benefits
MSP Claims Investigation Project
P.O. Box 33847
Detroit, MI 48232
(800) 999-1118

Aren't MSA only mandated for Workers Comp Claims at the present time?

MSAs are mandated by virtue of the MSP statute itself in any settlement that has foreseeable anticipated Medical expenses that would otherwise be covered by Medicare regardless of the type of insurance [statute below specifically cites all types of insurance]. You are confusing the need for an MSA with the availability of CMS review of a WC claim that meets the workload thresholds thresholds of its review contractor. With the new MMSEA reporting requirements, CMS will be on notice of every settlement with foreseeable future medical of Medicare beneficiaries where MSAs were not considered

42 U.S.C. 1395y(b)(2) MEDICARE SECONDARY PAYER

(A) In general

Payment under this subchapter may not be made, except as provided in subparagraph (B) [Conditional Payments], with respect to any item or service to the extent that –

(i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1),

or

(ii) payment has been made, or can reasonably be expected to be made under a workmen's compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

You talked about exceptions to reporting new requirements for WC case -- meds only claim, less than 7 days lost time, and "under $600". What under $600? Under $600 in medicals? Where is this information?

http://www.cms.hhs.gov/MandatoryInsRep/Downloads/Allert_UserGuideSupp_NGHP.pdf

(let me know if claims really exist that meet that criteria)

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Cystic fibrosis is a devastating genetic disease that affects children and young adults. Advances continue to be made in finding a cure, but your help is needed now - more than ever - to help keep up the momentum of this life-saving research. Too many young lives depend on this vital research to let it go unfunded.  GREAT STRIDES is the Cystic Fibrosis Foundation's largest and most successful national fund-raising event.  We ask that you consider making a donation to the GREAT STRIDES team that is participating in a walk on 05/17/09 in the Hunt Valley, MD, area.  Making a donation is easy and secure. Just click on the "My Personal Invitation" link below, provided by Anne Antonelli, a fellow claims professional.  Any amount you can donate is greatly appreciated.

Donating to GREAT STRIDES is such a simple and effective way for you to show your support for this important cause. Together, we can make a difference in the lives of those with CF. Once again, thank you for supporting the mission of the CF Foundation!

•           View My Personal Invitation!

•           Visit the CF Foundation Web Site  

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For those of you that have not fully grasped the financial impact of CMS' latest memo mandating the use of Average Wholesale Price when calculating future prescription drug treatment, here is a sobering statistic gleaned from one client's experience.

We calculated the increase from our normal RX calculation methodology to AWP and came up with a $1.4MM differential on the first 17 cases.  And that is without using the infamous donut hole or arbitrary DUR in the initial calculation.

So the question now becomes, is CMS' opinion worth $1.4MM?

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

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Today kicked off the IAIABC 2009 All Committee Conference in Baltimore, Maryland. This afternoon’s agenda was titled “CMS and Workers’ Compensation Forum” with a generous 1 hour 15 minute session devoted to WCMSAs and conditional payment recovery, while a 1 hour 45 minute session was devoted to Section 111 reporting. Presenting for CMS were primarily Frank Johnson, who you may recognize as the questions guy from the April 3, 2009 AWP memo, and Barbara Wright from the many MMSEA teleconferences.

As for WCMSAs, it was clear that in light of the recent AWP proclamation that attendees were optimistically looking for a forum for discussion of the same. What we received instead was a rudimentary WCMSA lesson presented by Mr. Johnson followed by discussion of some interesting problems the process has caused in Michigan and New Jersey, leaving us with enough time for exactly two questions, the first of which was wasted on a MMSEA question deferred to the following session.

The second question was the one everyone’s been waiting for CMS to answer: how does CMS justify forcing insurers to pay more in a settlement utilizing AWP for future Rx than they are responsible for under state law or that claimants even need postsettlement? The answer was essentially that AWP is the only way they can be “on the same page” as those submitting WCMSAs for review. Also whenever they could fit it in, we received a subtle reminder that federal law supersedes state law. Again the issue was not addressed and all attempts at clarifying the question were thwarted as they ended the session for a beverage break.

Although we did not get the answers we were hoping for, one thing that was interesting was that CMS’ tone with regard to its review process has changed significantly. An entire page of Mr. Johnson’s presentation was dedicated to pointing out the fact that the CMS review process is totally voluntary. It is not mandated in or governed by any federal law and if required by the state workers’ compensation agency, that has nothing to do with CMS. In the past, that message was always don’t seek our approval to your detriment. It almost appears as if they are discouraging our use of their review process and that we should expect to fund more than needed for MSP compliance if we want the alleged assurances provided in the CMS approval letter. 

As for MMSEA issues, nothing new or informative was discussed. Although an email was sent out prior to the event notifying participants that they should be familiar with the issues, implying that stupid questions would not be entertained, the questions were very basic. Or they were too complicated for CMS to answer, with the stock response being to send emails to them with those particular situation so they can better understand how the insurance industry works. Interesting that because the MMSEA is law that CMS is interested in understanding how the law applies to the unilateral policies they dictated, however our efforts over the past 8 years to provide them with information about applications of insurance, contract, and workers' compensation law to WCMSAs have fallen on deaf ears. Must be that the voluntary process is not subject to any of those limitations.

We recognized many MSA industry participants at the meeting. Fortunately, we only had to drive 20 minutes to attend while they flew in from all over the country. Knowing what we know now, that 20 minute drive could have been put to more productive use than sitting through an MSA 101 presentation and having CMS decide a cold soda was more important than getting feedback from industry experts and stakeholders. In their defense, the Marriott did put out an excellent assortment of beverages.

Grade for latest CMS outreach effort : D- (They would have gotten an F but for Mr. Johnson reminding everyone that the review process is voluntary... That is a point we hope becomes more and more accepted by the industry.)

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I again apologize for the delay in answering your remaining teleconference questions but implementing the latest memo from CMS regarding Rx pricing this week has been a challenge. This is nearly all the questions posted during the call and I should have the last few posted questions and the emailed questions for you by the beginning of next week. So keep checking back and please feel free to send any other questions that may arise as you read over the answers. Have a pleasant Easter holiday.

Please send me printed materials for the last part of the seminar.

The materials the last part of the seminar was derived from are available here.

Where can I find out what a TPA has to do in order to become our "agent"?

If by “our” you are indicating that you are the RRE, you cannot name an agent until you nearly complete the registration process. First the authorized representative must initiate the registration on the COBSW (just posted on 4/2/09

How can I get in touch with you after this seminar for association on negotiations with SS?

MEDVAL provides conditional payment negotiation services. Just call 888-SET-ASIDE and your call will be directed to a member of the staff who can provide you will all the information you need to get started.

In a liability insurance case, is defense counsel only obligated to notify Medicare of settlement?

Liability claims are only reported in the quarter settled unless there is an ongoing responsibility for medicals which needs to be reported on inception and upon settlement. And actually defense counsel can only do the reporting if named by the RRE’s account manager as an account designee or agent.

The anti-lien statute that applies to Medicaid and that was central to the decision in the Ahlborn case by the US Sup Ct, does that anti lien provision and Ahlborn analysis apply to MSPA?

The Ahlborn rational applies only to 42 USC 1396a(a)(25), not 42 USC 1395y(b)(2). Not only are Medicare and Medicaid totally different programs, but their respective authorities are separately codified with very different recovery mechanisms. Medicare recovery rights are codified at 42 USC 1395y(b)(2)(B)(ii)-(iv) which provides Medicare a primary right of recovery from insurance payment proceeds, a much more powerful recovery right than Medicaid’s subrogation right.

How does a Medicare Advantage plan figure into this situation?

Medicare Advantage, or Medicare Part C, is still Medicare for all intents and purposes of this discussion. Although provided by private insurance carriers, it is done so on behalf of the Medicare program which entitles the private carrier to secondary payer status and all recovery rights provided Medicare under the MSP.

Does SS consider the amounts of money paid for loss consortium to the spouse in determining whether the there was a substantial discount in the settlement due to an absence of insurance coverage?

A loss of consortium claim belongs to the spouse and should not be included in the total settlement amount for purposes of evaluating MSP issues in the settlement.

In a liability insurance settlement, how does defense counsel protect insured and carrier?

By taking whatever precautions available to prevent Medicare from treating the injury subject to the insurance claim post-settlement. Compliance with the MSP can be accomplished by making a reasonable allocation from the total settlement amount sufficient to accomplish just that without any involvement of expensive vendors or even CMS. However those additional opinions are advantageous in preparing your defenses to future CMS scrutiny as you then have the ability to state that you reasonably relied upon an expert 3^rd party vendor specializing in MSP compliance or that the government agreed with your assessment. [Note: there is still not formal review process for liability claims, however one can request the review of a liability MSA that CMS may opine on at its sole discretion. It does not happen much, but we have occasionally received approval letters on liability claims.] 

Just remember that the only thing required by law is that Medicare may not make payment were a primary payer is responsible – all the rest of what everyone thinks is required is totally superfluous.

Is $250k per claimant's total recovery or per defendant's settlement

If this refers to the CMS threshold for determining if a claim is reviewable, then the answer is per claimant’s total recovery. CMS adds all related settlements: 3^rd party liability + WC, WC with 2 different insurers, previous indemnity settlement + current medical. Also note that CMS also uses the total of all expected payments when a structured settlement is involved, not the cost of the annuity purchased.

Have regulations now been put in place with regard to how carriers will be required to report Medicare recipients who have filed PI suits?

PI will only have to be reported when settled, unless it is a no-fault situation which will need to be reported as an ongoing medical claim in the quarter opened then reported again when the benefits run out or the claim is settled. The details can be found in the operations manual available here.

If you inquire of a claimant in a liability case as to whether he/she is a Medicare recipient and he/she does not disclose but is, is there potential liability on a carrier?

By not verifying with SSA that there was no Medicare entitlement when that opportunity was available, a carrier could be opening themselves up to potential future liability. It is best to make provisions under the MSP regardless as nearly everyone will become Medicare entitled at some point in their lives and if lifetime medical is anticipated, Medicare has an interest in that settlement. However when an insurer wants to rely on the word of the claimant like this, we frequently suggest language such as “As a term of this settlement, the parties have fully considered Medicare’s interests pursuant to the MSP and in doing so, Claimant has declared that he is not Medicare eligible and therefore Medicare has no interest to protect at this time. Claimant has been made aware and fully understands that should he become Medicare entitled in the future and require treatment of this injury that he will not be entitled to treatment by Medicare and will be required to use proceeds from this settlement for treatment of the same.”

Now please note that this will change effective July1, 2009 when the reporting requirements go into effect. The insurer has the duty to verify Medicare eligibility and has been provided with a monthly query function as part of the reporting process. Due to the $1,000/day fine, the word of the claimant will carry very little weight with insurance carriers in the near future.

Are there certain situations that you are aware of in which the government may be more willing to waive or reduce the lien? Is this just a matter of who the claims representative is?

The regulations state CMS may waive or reduce in cases that do not warrant pursuit. Take that with the standard line when you call of cases being evaluated on a case by case basis, you still don’t get an answer to your question. In our experience, cases that really do demonstrate hardship, where a claimant will receive nothing in a settlement due to the amount of the conditional payments compared to the size of the settlement or especially in policy limits situations, CMS is reasonable.

Can the government come after a Plaintiff's attorney for reimbursement, if that attorney received a contingency fee from the settlement proceeds?

Absolutely. 42 CFR 411.24(g) states:  “Recovery from parties that receive third party payments. CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a third party payment.”

Is there an on-going resp of the govt to update its response?

I don’t fully understand the context of this question, however regardless of whether it is referring to the reporting requirement inquiry responses or WCMSA approvals, we have never experienced CMS “updating” any information we have ever been able to drag out of them. The burden on all aspects of MSP compliance has always fallen upon the parties to the settlement itself. Find it unlikely that that will change in the future.

What is an MSA (that people say they don't need)

Frequently people state that they do not require an MSA in cases unless it is workers’ compensation, unless it is over $250,000. Regardless of the type of insurance or the dollar amount of the settlement, if the injury requires lifetime medical treatment and the injured party is or will become entitled to Medicare at a time when the treatment will occur, an MSA is needed.

Are there Medicare lien rights on undetermined future medical expenses?

Not unless and until Medicare makes payment for treatment of the insured injury post-settlement and seeks repayment from the insurance payment from the primary payer. Just as in a liability insurance situation where Medicare has no right of recovery for Medicare payments made unless and until a settlement is reached and they become considered conditional, Medicare will also have no right to assert a lien on undetermined future medical expenses until they make a payment which requires repayment.

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On April 6, 2009, CMS released a memo dated April 3, 2009 finally implementing an independent pharmaceutical pricing plan. As most of you are likely aware, CMS began requiring the inclusion of prescription drugs in MSAs effective January 1, 2006 upon the implementation of Medicare Part D, however never provided any guidance as to how to actually price the drugs. Effective June 1, 2009, only 3 ½ years later, the industry has finally been told to utilize average wholesale pricing (AWP) in the calculation of prescription drugs in MSAs, the effect and implementation of which is outrageous.

Average wholesale price is a term referring to commercially published lists of the average price at which wholesalers report that they sell drugs to their various customers. The Red Book, published by Thomson Medical Economics, is one example of such a list with pricing information based on data obtained from manufacturers, distributors, and other suppliers. Note that there is more than one published list of AWP and not all manufactures provide all publishers with their proprietary information, yet CMS has not included in its memo which list it may be utilizing nor how to reconcile pricing differences among them. Given the additional fact that there are several NDCs for the same drugs, which are listed in the AWP CMS is using is vital information.

While the term average wholesale price is intended to indicate just that, an average price, in practice it is just a figure reported by commercial publishers of drug pricing data and has little bearing in the reality of pharmaceutical sales. AWP is like a “sticker” price on a car – it is a drug pricing benchmark for payers throughout the health care industry but no one actually ever pays it. Drug pricing is typically based on AWP minus some negotiated discounted percentage and the more buying power the buyer has, the lower the price will ultimately be. In the context of CMS’s latest policy change, this is a huge expense to the insurance industry as this will require carriers to fund amounts greater than any obligation they would have under state law on an open claim paying for drugs at their negotiated rates. CMS is effectively taking away the ability to settle insurance claims, which may be its end game. So long as all insurance claims remain open, Medicare will always be secondary and never have to concern itself with any of its MSP monitoring or recovery efforts.

Criticism and disputes concerning AWP pricing is nothing new or unknown to the public. In 2002, a class action lawsuit  was filed in Massachusetts involving 23 pharmaceutical companies charging AWP for certain physician administered drugs treating cancer and serious illnesses, essentially holding serious ill individuals hostage at the high AWP price if they wanted to pursue certain drug treatments. To date more than half the defendants have settled for more than $225 million, an industry acknowledgement that the practice, if not unlawful, was at least unethical. Even the United States government ceases use of AWP in Medicare reimbursement rates when it passed the MMA in 2003, implementing instead reimbursements based upon a competitive acquisition program or an average sales price (42 USC 1395u(c)), both of which methods the statute actually goes on to define, unlike AWP.

Issues with regard to Rx memo are great. Not only is CMS holding WC insurers to a greater obligation than that which they have under state law, it is failing to address state law in certain states. Most notably, states such as California have workers’ compensation fee schedule pricing for pharmaceutical drugs. How does CMS justify implementing a unilateral application of AWP nationwide when certain states’ laws dictates otherwise? Clearly the constitution and states’ rights were not a consideration in the writing of this latest memorandum, which is not surprising as it is not the first time. In May 2008 CMS implemented a policy depriving female workers’ compensation beneficiaries out of an average of 2 years of medical benefits by disregarding years of statistical data concerning race and gender collected by the CDC in the compilation of the widely recognized and accepted life expectancy tables and implementing a unilateral use of Table 1 in determining life expectancy used for purposes of calculating a WCMSA.

Other notable points of interest from the memo are the idea that CMS will now provide what the MSA industry refers to as “counter offers” should it feel that the Rx was not provided in error and do so at brand name pricing regardless of generic availability. Additionally any existing submissions that are deemed “closed” for whatever reason and reopened after June 1, 2009 will be done so under the new pricing so many proposals will met with un-appealable CMS pricing over the next several months. Finally although somewhat silent to the specific use of donut holes, DURs and arbitrary limits to the number of years funded due to tolerances or manufacturer recommended use durations, CMS did note that it will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals, so essentially CMS wants insurance carriers to fund 100% of claimant desired post-settlement Rx at above acquisition costs and preferably at brand name cost, with no regard to the carriers’ actual legal obligations under state workers’ compensation law or its obligations to protect only Medicare’s interests under the MSP statute. 

This new arbitrary policy is further evidence that perhaps it is time for the industry to take a stand and handle its MSP compliance absent the oversight of CMS. Without an appeal process, it is impossible to get CMS to acknowledge, let alone change, any of its policies that are overreaching. Many of its policies even fail to protect Medicare in its attempt to “simplify” procedures for its contractors. As many carriers and attorneys are to this day still confused as to the difference between complying with the MSP and obtaining CMS approval of a WCMSA, the answer to this problem may lie in educating the industry to ignore the CMS protocols and deal with the MSP privately. The CMS policies are not the law, only the MSP statute itself is and that simply states that Medicare may not make payment where there is a primary payer. Although granted deference by the courts, agency interpretation of the law it is charged to implement would carry no weight once proven to be unlawful in and of itself.

So look for yet another significant increase in the size of MSAs in general to begin immediately. More irritatingly, be cautions of situations where you purposely do not include Rx in your MSA and CMS holds a different opinion as they have stated in the memo that not only will it counter with the Rx allocation amount that they see fit, it will be doing so at brand name prices. Additionally drugs priced as a generic that CMS decides does not have an AWP will be re-priced as a brand name as well. Given that there is no mention of which AWP list CMS will use let alone the NDCs included on that list, it is almost certain that we will be seeing a lot of “re-pricing” for months to come. And although the memo is silent to the fact, we are fairly certain that its Rx allocation determinations will not be appealable.

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Medicare Set-Aside Allocation/Arrangement Recommendations

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Thanks to all who participated in the Lorman teleconference yesterday. This was the third year I've given that teleconference for them and it was by far the best turnout yet. Again I apologize for not being able to answer your questions as they were presented, but as you could probably tell, not only was it distracting to stop to read them, but I was pressed for time as it was to cover as much information as possible given the addition of the MMSEA information. This year we've decided to post all of the answers to the unanswered questions on our blog so everyone could benefit from the information. I have made my way through only a portion of the questions so expect probably at least 2 or 3 more posts throughout the week. And please let me know if I missed any of your questions or if you have any follow-up questions.

MMSEA information requests.

There were several questions asking to provide "information regarding the last part of the presentation". The information I provided regarding the RRE registration process was taken from the operation manual dated 3/16/09 and the alert dated 3/24/09.  CMS posts all MMSEA publications and transcripts of its teleconferences on its website. 

Group Health MMSEA questions.

There were several questions regarding group health and the MMSEA. As I stated on the call, we only deal with the personal injury types of insurance and group health is outside the scope of our services. I will check to see if the subsequent MMSEA teleconference in June will address those issues and provide another posting with the information.

Does the MSP and MIR apply to occupational accident insurance?

Occupational accident insurance most would likely be considered a “workmens’ compensation plan” as expressly listed in the MSP statute since it generally used to cover owners excluded from mandatory WC insurance requirements in most states. If the state WC statutes do not address this option then it likely just considered a liability insurance. Either way, it is a form of insurance that compensates for personal injury and would be subject to MSP recovery efforts.

Will Lorman be offering any educational teleconferences geared directly to Medicare Advantage plans?

Not to my knowledge however I will pass along the request. The only additional MSP related teleconference that I am aware of is the MMSEA conference scheduled for June 8, 2009.

Can anyone put together and submit an MSA proposal or is there a licensing for this or requirement?

There is no official licensing requirement for preparing and submitting MSAs, however there is a “Medicare Set-Aside Certified Consultant” (MSCC) certification available from the Commission on Health Care Certification.  Although no official training is required, based upon the various reports on which I am routinely asked to provide a second opinion, those who are not properly trained or who prepare a large enough volume of reports regularly generally overfund allocations to the detriment of settlement negotiations due to not being 100% knowledgeable about changes in CMS policies, Medicare coverage, applicable state laws, etc.

Would a Jones Act Employer who pays medical payments to an employee be considered a Primary Plan?

Jones Act claims are considered liability claims (or self-insurance claims if employer carrying its own risk) by CMS given the need to prove negligence in order to make a claim. Accordingly that employer would be a primary payer under the MSP. The distinction to remember is that MSAs on such claims are not eligible for CMS review.

If one obtains substantially all the insurance available in a med mal settlement but only covers about 20% of future meds, does Social Security look to solvency of underlying physicians?

You would have to make an appeal to CMS to compromise their conditional payment recovery based upon the hardship that would be created for the injured party by devoting a likely 100% of the settlement proceeds to medical due to the reduced recovery due to solvency issues. CMS by statute has the ability to make such a determination, however it is made at its discretion and is not guaranteed to occur under any circumstance. Because every case is evaluated on a case by case basis, there is no certain answer as to what CMS's position would be with regard to the insolvent physicians.

Then earlier you said that we should not use any threshold amounts and any settlement (w/ closed medicals) could be reviewed. Could you explain this? Thanks.

This question is not entirely clear, however I believe the question meant to address the misunderstanding between the need for an MSA and obtaining CMS review.  I had stated that you should not utilize the threshold amounts when determining if Medicare had an interest to protect in the settlement. Only WC cases that meet the review thresholds could be reviewed by CMS for a determination of adequacy. The WC review thresholds DO NOT create a safe harbor where an MSA is not needed in a claim with foreseeable future medical exposure.

Does Medicaid have the right to seek reimbursement from settlement funds held in trust for a minor?

Medicaid is outside the scope of this teleconference as it is a state, asset determined medical program unrelated to the federal Medicare program. However if by “trust” you mean a special needs or supplemental needs trust pursuant to 42 USC 1396p(d)(4)(A) or (d)(4)(C), then the answer is probably no as the purpose in forming the trust is to provide for the supplemental needs of injured persons over and above the medical benefits provided by Medicaid as opposed to the medical care itself. Hence the payment of medical care regardless of when provided would likely not be considered an authorized expense from the trust. Not my area of expertise so I would consult with a trustee of similar funds to get their take on your situation.

What carriers do you recommend for life expectancy?

Life insurance companies have changed significantly over the past year with respect to the type of business they are interested in pursuing. At this time, American General (an AIG subsidiary) is the most aggressive provider of rated ages. It is assumed that given the overall state of its parent company, the loss of it’s A+15 AM Best rating and the markets reluctance to place business with anything related to AIG, American General is willing to take on that substandard business and is providing aggressive rated ages to make the pricing of life contingent annuities more favorable. Historically Liberty Life was very aggressive in its ratings, however in recent financial times has become considerably more conservative. If you are looking for a rated age that may truly evaluate the diminished life expectancy (keeping in mind that these determinations are generally based upon evaluation of no more than 10 pages of medical reports), you’ll want to look to a company that neither pursues nor shies away from what is considered substandard business – perhaps something like Pacific Life or NY Life.

Some other things to know about these life companies is that they are not in the business of providing rated ages where there is no reasonable expectation of potentially writing a structured settlement on the claim. Rated ages are becoming harder to come by because of this abuse created by CMS in requiring that rated ages be provided on life insurance letterhead. Some companies will not provide underwriting services where they are not on the P&C carrier’s vendor approved list. Allstate does not underwrite WC claims in general. The MSA industry should prepare itself for not being able to benefit from a reduced life expectancy unless it begins to implement a standard use of structured settlements for funding MSAs.

What protections are there if the settlement is a confidential settlement?

Besides the contractual obligation of the parties to the settlement, HIPAA would be the only protection I can think of to the confidential settlement as that is generally what CMS hangs its hat on when refusing to discuss a claim without a release signed by the beneficiary. After July 1, 2009, all settlements of those Medicare entitled will have to be reported to the government and information and documents controlled by the government are subject to freedom of information act requests so the terms of the settlement may be subject to such a disclosure. However it my understanding that such requests are limited if concerning private medical information.

So the cost of professional administration does not reduce the expected Medicare set aside?

Pursuant to published CMS policies, you may not pay the costs of professional administration from an MSA, effectively reducing the expected MSA. They must be paid in addition to the allocation determination.

So, what you are saying, is that by structuring you can save 40%, but if you do not structure it is not proper to reduce to present value by that 40%, is that correct?

Correct. Say you have a $100K MSA – you cannot reduce it to $60K and provide that as a lump sum at the time of settlement as an MSA. However you can elect to fund the MSA annually which may cost $60K at the time of settlement but had an expected payout of at least the necessary $100K.  And remember that if in any given year the MSA account is completely exhausted, CMS will permit Medicare coverage until the next annuity check is due, which could happen on an annual basis and is totally acceptable to CMS.

In a PI liability settlement where a set aside trust is used. What happens to the proceeds in that trust if the settling Plaintiff does not receive future medical care? When can the settling Plaintiff access that trust?

Prior to May 2008, CMS had a policy in place whereby it could be petitioned for a reduction or release of MSA funds when treatment had decreased by at least 25%. Without that policy, MSA funds are expected by CMS to be kept in that dedicated account indefinitely.  However the reality of the situation is that should the MSA recipient truly require no future related medical treatment and elect to utilize those funds for another purpose, he should do so with the knowledge that should his condition return or deteriorate and require future treatment, the MSA funds will act as a deductible and it will be necessary to provide to CMS an accounting of the entire MSA amount properly spent on related Medicare covered medical treatment before Medicare coverage of that treatment will become available.

Could you repeat about isolation of Medicare exposure in the future?

A strict interpretation of the MSP statute is to make sure Medicare does not make payment for treatment of an injury with a primary payer. Medicare does not pay 100% as there are co-insurance payments and deductibles that must be paid by the beneficiary. Therefore, Medicare’s interest in a settlement, that which we are obligated under the MSP to protect, is less than that which CMS requires funded in WC claims subject to its review process. Identifying and isolating only those portions covered by Medicare and providing only those funds as an MSA at settlement would fully comply with the MSP statute via a strict interpretation of the law. Of course demonstrating claimant’s understanding of the need to pay the copay and deductible portions as with a regular Medicare claim will help make taking that position more defensible.

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Medicare Set-Aside Allocation/Arrangement Recommendations

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We’ve recently received several questions with regard to issues surrounding MMSEA from various parties in the Medicare Set-Aside industry.  Following is a snapshot of two of these inquiries:

Are umbrella or excess carriers who reimburse their insureds for claims paid considered Responsible Reporting Entities (RREs)?   In their Non Group Health Plan (NGHP) User Guide as well as in the course of discussion in Town Hall Meetings, CMS has defined RREs as those entities who make payments to claimants directly.  Those entities who reimburse other entities for claims paid and do not make payments to claimants directly are not considered RREs by CMS for purposes of MMSEA reporting.

If a primary liability insurer settles with a bankrupt insured and pays funds into a bankruptcy trust for later payments to claimants, who is the RRE in this situation, the liability insurer or the bankruptcy trust?  At this time, CMS continues to defer their official response on this issue.  As such, the NGHP User Guide does not specifically address the issue of bankruptcy; however, the Interim Record Layout dated 12/05/2008 (published by CMS on their website) does discuss this issue.  In this document, CMS stated that it was considering whether special provisions must be made for an RRE in bankruptcy.   Since the issuance of the Interim Record, the issue has been raised on every Town Hall Meeting conducted by CMS and they have indicated that direction on this issue is forthcoming.

For insight into CMS’ possible handling of this issue, one should consider how the NGHP User Guide addresses self-insurance pools/joint powers authority on page 19 where they state:  If the pool is 1) a separate legal entity with 2) full responsibility to resolve and pay claims using pool funds   3) without involvement of the participating entity, then the self-insurance pool is the RRE.   If all three of these factors apply to a bankruptcy trust, then one could draw the conclusion that it could be identified as an RRE by CMS when they issue their final position in this regard.

For more information or to view the two documents discussed above, please visit CMS’ website at

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CMS updated the insurance industry on their MMSEA Section 111 reporting requirement today. MEDVAL was in attendance and has provided a summary of the call for your convenience (here).

For questions about Medicare Set-Aside Arrangements as they pertain to liability settlements or general questions about your obligations under Section 111. Contact us at 888-SET-ASIDE.

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Medicare Set-Aside Allocation/Arrangement Recommendations

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Do you have a water bottle or glass of ice water sitting on your desk right now?  Did you know that there still are millions of people in villages throughout the world that don’t have access to even a small cup of clean drinking water which leaves many suffering unnecessarily from various illnesses and diseases?  We have become aware of and are proud to support an organization called Wells for Life that dedicates itself solely to providing clean and safe drinking water to rural villages in India.  Wells for Life was started by a former claims professional who left his insurance career to focus his life’s work on providing a healthier life for those living in rural and underdeveloped areas throughout southern India.  In 2007, Wells for Life was able to fund 52 separate projects ranging from small hand pump wells for rural villages to larger systems which provide water for schools and orphanages.  Despite the economic hardships faced by most people in 2008, Wells for Life was still able to fund 54 projects thanks to the generosity of many individuals and organizations.   For about the cost of one Medicare Set-Aside allocation report, a well can be constructed which will provide fresh clean water to an entire village of 300 people.  We encourage you to learn more about the difference Wells for Life is making in southern India.  For more information, please visit www.wellsforlife.org .

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Medicare Set-Aside Allocation/Arrangement Recommendations

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This week, President Obama signed the American Recovery & Reinvestment Act of 2009, commonly known as the stimulus bill.  There are components of this package that will directly affect the operation of the Social Security Administration in the short term with the distinct probability of a boon to those involved in and responsible for processing  Medicare Set-Aside , Medicare Secondary payer, and Medicare, Medicaid, SCHIP Extension Act  (MMSEA)  functions within the next 3-5 years. Here's a brief summary of components relevant to SSA:

• Every beneficiary and recipient of Social Security benefits will receive a one-time $250 stimulus payment which are targeted to be issued by summer 2009.
• $90 million has been earmarked for the administrative costs associated with processing these one-time payments.
• $500 million is included so that SSA can process additional work they've received due to the economic slowdown.
• Assuming Congress passes the FY 2009 appropriations, SSA would like to hire between 5000-6000 more employees by year's end.
• $20 billion of this package will be utilized to improve health technology throughout  the Federal government. SSA is already piloting programs which would give them HIPAA compliant direct access to patient medical records.
• $500 million will be used specifically to replace the National Computer Center.  Upon completion of this 3-5 year project, anyone who interfaces with SSA will notice a significant improvement in overall  responsiveness and capabilities relating to SSA functions.  

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Inviting the wolves into the hen house

One of the blights on the Medicare Set-Aside (MSA) industry is the aggressive sales tactics employed by some vendors to generate revenue. Readers of this blog know that MEDVAL believes that the MSA process is a consultative, professional service, best performed by highly skilled legal, medical and financial professionals. However, other firms look at an MSA as a commoditized widget to be aggressively pursued and sold by a sales force long on ambition to earn a commission check but short on qualifications or claims handling ability.  Take a look at the website for the industry's most active trade organization, the National Alliance of Medicare Set-Aside Professionals (NAMSAP).  Most of the employment listings are for sales reps with very little required in the way of qualifications.

With the advent of the new reporting requirements found in the Medicare, Medicaid, and SCHIP Extension Act  (MMSEA), some firms have seized on a new marketing gimmick to drive revenue and generate claim referrals. In exchange for an exclusive MSA relationship and maybe a small fee, they will handle all the reporting requirements for the Responsible Reporting Entity (RRE).

Here is what they don’t tell you…

1. They have no experience building or maintaining an electronic interface with the Centers for Medicare and Medicaid Services  (CMS)  or managing an IT project requiring change management from within a client organization.
2. The difficulty in compliance with the MMSEA Section 111 reporting requirements is not interfacing with CMS but gathering the required fields from legacy claims systems and changing the way information is developed by the claims handler.
3. Once these firms have a master list of all eligible Medicare beneficiaries, each claims office can expect a nonstop badgering of front line claims professionals so that the local “field rep” can meet this month’s sales quota.
4. Offers to indemnify a payer against CMS penalties are virtually meaningless since several of these firms failed to live up to the last great marketing gimmick :  the “guaranteed MSA”.  All that was accomplished by the guaranteed MSA was an increase in the loss costs of payers due to millions in overfunded MSAs with a negative net benefit to clients that were oversold and underserviced.
5. Instead of having the flexibility to choose a best-of-breed MSA provider, you may now be now locked-in to higher MSA fees (nothing is really free is it?), questionable work product and a dysfunctional vendor relationship where the vendor dictates terms because of the  difficulty of transitioning a CMS reporting relationship once established.

MEDVAL has agreed to act as an agent for a couple of fairly small regional clients since they don’t have the resources to comply with the IT challenges. Our internal claims system accepts data transfers from clients and will be compliant with CMS protocols once they are fully developed.

However, you will never see us market this service as a way to capture MSA business.  We strongly believe that any sizable claims organization has ample resources to handle this requirement internally with minimal resources.  

Giving an MSA vendor with a large hungry sales force access to a target rich list of confidential claims data is sort of like leaving the wolf to guard the hen house. 

Concerned about the MMSEA Mandatory Insurer Reporting Requirements?  Need a little help? Call 888-SET-ASIDE or e-mail us at info@medval.com.

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Medicare recently issued a National Coverage Determination (NCD) regarding the issue of radiofrequency procedures for treatment of low back pain.  This determination specifically addresses the fact that they will no longer provide coverage for percutaneous thermal intradiscal procedures (TIP) that are performed within the disc itself, such as IDET.   CMS concluded that the evidence they compiled regarding use of these procedures does not demonstrate that TIPs improve health outcomes. When a TIP procedure is discussed in the records you're reviewing in preparation of a Medicare Set-Aside allocation,   it is important to keep in mind the distinction between TIP procedures that are used to destroy the nerves and those that are performed within the discs themselves.  Click here for more information. 

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CMS updated the insurance industry on their MMSEA Section 111 reporting requirement today. MEDVAL was in attendance and has provided a summary of the call for your convenience (here).

For questions about Medicare Set-Aside Arrangements as they pertain to liability settlements or general questions about your obligations under Section 111. Contact us at 888-SET-ASIDE.

MEDVAL 1-888-SET-ASIDE

Medicare Set-Aside Allocation/Arrangement Recommendations

Submissions to Centers for Medicare and Medicaid Services

Post-Settlement Administration

Pharmacy Benefit Management