Current Issues Related to MSA Compliance

This panel at the 2015 California Workers’ Compensation & Risk Conference dove into current issues and best practices with regards to Medicare Set-Asides (MSA). 

Panelists included:

• Moderator: Mark Walls, Vice President Communications & Strategic Analysis at Safety National
• Kristine M. Wilson, Esq., MSCC, Chief Operating Officer and General Counsel at Tower MSA Partners
• Jake Reason, Vice President, Medicare Set-Aside Services at EK Health
• Russell Whittle, Vice President of MSP Compliance at Examworks Clinical Solutions
• Tony Comas, Member at Burns White, LLC

Should you submit and MSA to CMS for approval or not?

• It depends. It is based on your client’s philosophies and what kind of risk they want to undertake. It also depends on the facts of the case and what they’d like to receive.
• Assessment of risk is important. Essentially the risk is the claimant losing their Medicare benefits post settlement. You need some definites. 
• We’ve seen CMS trends that can be used in preparation pre-submission. We are getting faster approvals by using this type of information and are also submitting more information than required to help our case. Showing that you are protecting Medicare’s interest by setting the settlement up correctly helps tremendously.
• It can be a bad idea to submit, if CMS might question grey areas in the case. It can be inconsistent based on your reviewer. It’s not 100% guarantee that you will get the approval you are depending on.
• It is not a requirement to submit and you can get inconsistent answers from CMS when you do submit. They could deny your worker benefits.

CMS does not require professional administration and it can be very confusing. One of the largest challenges is that there are not hard and fast rules behind it. Do you see a day coming when they will require professional administration over a certain dollar amount?

• It would be hard to do that. They would be trying to control something that they can’t measure at this time.
• MSAs do not actually generate money for CMS. From that point of view, I don’t think CMS is sophisticated enough, or interested enough, to establish something like that.
• In some ways, the MSA side of the house is fictitious. We have to jump through hoops that make it tremendously expensive.
• It is ironic that CMS prefers lump sums. They expect the claimant to manage this lump sum for future medical, themselves. It could go badly. The claimant could spend all of the money prematurely.

Does the injured worker have access to the California fee schedule when they get a lump sum?

• It depends. If they use their provider and ask them to bill them directly at the fee schedule rates.
• When they allocate, it’s an average of treatment needed for life expectancy. The funds are allocated (and often over allocated) to cover that difference.
• Medicare pays Medicare reimbursement, so they are overpaying. They are paying a rate that Medicare, themselves, doesn’t even pay.
• That is another argument for professional administration. They will cut those checks according to fee schedule. If it is the worker administering it on their own, it is tough to get those rates.

How does the IMR / UR process impact MSAs?

• Everyone has different experiences. In general, the IMR results become the law of the case if not appealed.
• What’s odd is that the IMR is moot if you were paying for a medication prior to the IMR. They will continue to pay for it.
• The approval from IMR is only good for a year. It doesn’t mean that the treatment is off the table for good. They give the most credence to the treating physician’s opinion.
• We have seen situations when the treating physician was provided the IMR / UR information and still recommended a different treatment and it was approved. If you include a copy of a specific statute as to why you are asking for a certain treatment or medication, it does help your case.
• It is important to realize who you are dealing with. They don’t have the resources or time to properly review submissions – it’s an average of 7 minutes per file. You are getting an arbitrary review so you need to educate the reviewer to help them properly understand your claimant’s case.