WCMSA - Solutions for Workers' Compensation and Liability Settlements

2401332_MKTG_NGHP-7.8-Ref-Guide-Blog.png

11/Dec/2024

On December 6, 2024, the Centers for Medicare & Medicaid Services (CMS) updated the MMSEA Section 111 NGHP User Guide to version 7.8. It has been posted to the NGHP User Guide page, found here. The NGHP User Guide to version 7.8 replaces Version 7.7 which was released on October 7, 2024.

MMSEA III – December 6, 2024 – NGHP User Guide Downloads 7.8

Chapter 1: Introduction and Overview

The updates listed below have been made to the Introduction and Overview Chapter Version 7.8 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. There are no changes for this version.

Chapter II: Registration Procedures

The update listed below has been made to the Registration Procedures Chapter Version 7.8 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. There are no changes for this version.

Chapter III: Policy Guidance

The updates listed below have been made to the Policy Guidance Chapter Version 7.8 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. A new section has been added that discusses Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs), within the workers’ compensation TPOCs section (Section 6.4.4).

Chapter IV: Technical Information

The updates listed below have been made to the Technical Information Chapter Version 7.8 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide, as necessary. A new section has been added that discusses Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs), within the workers’ compensation TPOCs section (Section 6.4.4.1).

Chapter V: Appendices

The updates listed below have been made to the Appendices Chapter Version 7.8 of the NGHP User Guide. As indicated on prior Section 111 NGHP Town Hall teleconferences, the Centers for Medicare & Medicaid Services (CMS) continue to review reporting requirements and will post any applicable updates in the form of revisions to Alerts and the user guide as necessary. There are no changes for this version.

270/271 Health Care Eligibility Benefit Inquiry and Response Companion Guide for Mandatory Reporting Non-GHP Entities Version 6.0

The email address for contacting an Electronic Data Interchange (EDI) Representative has changed to COBVA@bcrcgdit.com. However, COBVA emails coming from CMS now show the address as COBVA@mail.cms.hhs.gov (Customer Support).

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Medivest

05/Dec/2024

On November 26th, 2024, the Centers for Medicare & Medicaid Services (CMS) shared a new report titled Workers’ Compensation Medicare Set-Aside (WCMSA) Fiscal Year Statistics 2024. The report provides five fiscal years of data regarding Workers’ Compensation Medicare Set-Aside (WCMSA) Proposed Value and Workers’ Compensation Review Contractor Values (WCRC) from 2020 to 2024.

Analysis

There was a 5.6% decrease in the number of WCMSA allocation reports that were submitted to CMS for review from 15,743 in Fiscal Year (FY) 2023 to 14,862 in FY 2024. There was also a drop in average settlement value of 4.7% from an average of $159,976.93 in FY 2023 to only $152,487.15 in FY 2024.

Despite this drop in settlement values, the WCMSA proposals for allocation reports submitted to CMS remained relatively flat, only dropping less than 2/10ths of one percent from $70,887.33 in FY 2023 to $70,775.58 in FY 2024. Counterhighers from CMS, correspondingly remained relatively flat moving from its published increase between the submitted versus recommended amount of 22% in FY 2023 to an increase of 21% in FY 2024.

The biggest change in the WCMSA CMS review statistics in recent years is that in 2022, when Section 4.3 was first added to the Reference Guide, the average counterhigher jumped from a 13-15% increase for FY 2020-2022 to what may be a “new era” for the last two years being between a 21-22% increase. Taking the average of 14% from FY 2020 – FY 2022 to the average of a 21.5% counterhigher increase for FY 2023 – FY 2024, this amounts to 31% increase in the counterhigher percentages!

Proposed MSAs and Total Settlement Amounts

Pre-CMS review WCMSAs constituted around 46% of the total settlement amount in FY 2024 up from 44% in FY 2023.

Medical vs Rx

Medical items and services represented approximately 79.3 % of the approved MSA amounts, whereas Rx represented 20.7% of the approved WCMSA amounts in FY 2024. The medical portion was 76.9% in FY 2023 with Rx accounting for 23.04% of the MSA in FY 2023. In FY 2020 by contrast, the medical portion was 68.6% and Rx expenses represented 31.4% of approved WCMSA amounts. Rx expenses have declined by 34% since FY 2020 as a percentage of the WCMSA . While several factors are likely to be at play here, CMS’ use of sometimes aggressive NDCs to price drugs may be one culprit. Medivest consistently sees submitted MSAs priced using drug NDCs unavailable in the actual market, and well below market average.

Take Aways

While reviews by CMS could in theory include acceptances or even reductions in the amount proposed by submitters as counterlowers, those who submit WCMSA’s have come to know that CMS reviews of WCMSA’s most often come back in the form of a counterhigher. It is important to distinguish a counterhigher from the term counter offer used in contract negotiations. While the WCMSA submission process is entirely voluntary, CMS’s Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide (WCMSA Reference Guide) language and CMS operations consider the CMS review/approval response to be CMS’ final position on the acceptable amount to be set aside to protect Medicare’s future interests in the settlement, unless there is a successful Re-Review (allowed only for instances where there is a math error or the discovery of a document in existence prior to the time of submission but not included in the submission which is then allowed to be provided for the once only Re-Review opportunity). As a result, many in the industry say CMS uses the counterhigher to “voluntell” the parties the amount required to be set aside from their settlement for their WCMSA amount and that if an alternate amount is set aside or no amount is set aside, injury related medicals otherwise covered by Medicare could be denied by Medicare up to the settlement amount minus procurement costs instead of up to the CMS approval amount.

As background, total WCMSA submissions to CMS declined steadily between CMS’ FY 2020 and FY 2022, descending from 16,517 to 13,752, a reduction of almost 17% in three years. FY 2023’s 15,743 submission count seemed to have been a reversal of that trend until the 14,862 number for FY 2024 was reported. This seems to be the market shaking out the initial scare from Section 4.3. in which CMS had for the first time discussed “non-submit” or “evidence-based” MSA allocation reports as potential attempts to shift the burden of payment for injury related Medicare covered medicals to Medicare.

Proposed vs Recommended

While one can understand that CMS wants to protect the Medicare Trust Funds for both Medicare Part A and Part B, it does not seem to be productive for CMS to unfairly punish those who decide to voluntarily submit MSA’s in accordance with CMS WCMSA Reference Guide methodology. The statistics described above show that while the settlements have come down recently, the amount of the submitted WCMSA’s have not, so it’s not as if submitters have been lowballing their submissions. Those carriers who embraced a non-submit program in recent years to avoid higher WCMSA amounts associated with large counterhighers from CMS, may have not yet seen enough consequences to encourage a large return to voluntary submission practices.

The Big Question

These are statistics from those WCMSA’s submitted for approval, meaning they were written by industry-trained professionals in an attempt to match CMS’ recommended methodology. If the industry for those who submit have been consistent, but there has still been an increase in the counterhigher percentages, what has changed at CMS? While the fear in the stakeholder industry used to be focused on financial recovery by CMS under the Medicare Secondary Payer Act (MSP), could it be that CMS’s position concerning non-submitted WCMSA’s is evolving in the form of future Medicare denials for injured claimants who will be left to their own devices to attempt administrative appeals over those denials? The discussions of Section 4.3 of the WCMSA Reference Guide may have just the start of the new era, while CMS continues to build out its computer system in the background. Now, we are aware that there are new Section 111 Reporting requirements include the reporting of WCMSA amounts for all TPOC settlements involving current Medicare beneficiaries whether the WCMSA was submitted to CMS for review or not. Furthermore, the new Civil Monetary Penalty enforcement for untimely Section 111 reporting of ORM and TPOC applicable as of October of this year to be audited in October of 2025 seem to be clear additional steps of the new era, with additional data for CMS to continue to expand Medicare medical and Rx denials in the future. Routine reviews of business practices are prudent in any industry and as we head into another fiscal year, it is a great time to review your business practices to confirm your firm or company is taking the steps to help ensure best in class compliance standards that align with your clients’ interests and risk tolerances.

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or calling us directly at 877.725.2467.

Medivest

26/Aug/2024

It’s been a busy 2024 for CMS. Since February 2024, over half a dozen updates have been made to Section 111 Mandatory Insurance Reporting and CMS’s policies.

Ultimately, these new changes increase awareness and focus on post-settlement MSA spending, emphasizing the importance of utilizing a competent professional administrator.

What this means is you need Medivest’s Asure Pro-Admin more than ever to navigate these changes and keep all settlement parties from getting penalized for non-compliance!

**Medivest’s Asure Pro-Admin Helps Protect All Parties**

Asure Pro-Admin:
Professional Administration for MSA Accounts by the professionals

Medivest claimant accounts saved over 70% of what they were billed by providers over the last 12 months
An average of 23.3% of the original MSA is disbursed to the surviving beneficiary or reversionary interest party upon the claimant’s death
During our 27 years of business, we have only had a 2% member cancellation rate due to unforeseen reasons other than death. This remarkable retention rate underscores the value and satisfaction our members experience with our services
Medivest members and clients can be confident that a Claims specialist will review every line item on every bill submitted, ensuring proper coordination of benefits

Self-Asure:
The DIY solution with Medivest’s expert support

Don’t go it alone! Use Self-Asure to navigate the CMS government maze
The Self-Asure Self-Administration Kit, an innovative tool first created by Medivest, is good for injured parties with a small MSA that is designed to exhaust in a short length of time. Self-Asure provides guidance to individuals who opt to manage their own MSA, and pairs it with phone support and medical bill review from Medivest’s experienced Member Services team.
However, a Self-Administration Kit still has limitations, particularly if multiple bills come in at once. So the settlement parties need to carefully consider Medivest for professional administration per CMS’s recommendation.

4 Asure:
Easy approach to navigate settlement compliance for Insurer, Self-insured, and TPA without adding ANY work to the adjuster’s already full plate. The streamline process of:

Medicare Status check/lien investigation to determine if MSA is recommended
Structured Settlement consultant for rated age and MSA funding
MSA Allocation Report (if needed)
Professional Administration of MSA

CONTACT MEDIVEST TODAY – WE ARE HERE TO HELP!

877-725-2467 (Monday – Friday 8am to 5pm EST)

Summary/Takeaways

MMSEA Section 111 Mandatory Insurer Reporting (NGHP)

Medicare is ramping up its data collection. New fields have been added to the Section 111 Claim Input File to capture WCMSA information on all Workers’ Compensation (WC) claims involving Medicare beneficiaries.

These data collections will have a significant impact on reporting and WCMSA compliance for the use of non-submit and Evidence Based Medicare Set-Aside arrangements. By capturing this new data, Medicare will know when funds have exhausted, make more appropriate determinations regarding the coordination of benefits, and more thoroughly investigate which injury related medical payments they should be denying. The new fields will become effective 4/4/25.

Self-Administration Toolkit, Version 1.6

Under the WCMSA Guidelines, CMS has the right to recovery. Over 1/3 of Medicare recipients have a Medicare Advantage Plan (MAP). These plan providers have asked for the same recovery rights that CMS has. The last sentence in Section 4.1.3 of the new Self-Administration Toolkit takes the first steps to clearly spell out that CMS is extending their rights of recovery to MAP partners:

If you are enrolled in a Medicare Advantage or prescription drug plan, please contact your plan to discuss your WCMSA, if you have not already done so.

WCMSA Reference Guide, Version 4.3

In the latest update of the WCMSA reference guide, Medicare Advantage Plans continue to be spotlighted. In Section 4.1.3, CMS states:

CMS notifies Part C and D plan sponsors that a WCMSA has been approved and instructs plan sponsors to conduct Medicare Secondary Payer (MSP) investigations. However, CMS does not relay WCMSA details to plan sponsors… The administrator must provide details concerning treatments and medications used exclusively to treat a related illness or injury to the plan sponsor so the sponsor may avoid making primary payment in the future.

CMS instructs the MAP sponsors that a WCMSA exists but doesn’t share any specific details of the MSA. It seems inevitable that this will create a communication breakdown at some point. The onus of communication is put entirely on the administrator. For a professional administrator, this will be a common (and new) task, but for someone attempting to self-administer their WCMSA, a whole new world of responsibility and questions are about to be spotlighted.

For the full information on these alerts from CMS, please visit the “What’s New” page of their website.

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467 (Monday – Friday 8am to 5pm EST).

2401229_MKTG_Blog_WCMSA-Ref-Guide-V4.1-1200x601.jpg

Sandy Simpson

02/Aug/2024

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 4.1 on August 1, 2024. This Reference Guide replaces Version 4.0 which was released on April 1, 2024. There are a few notable changes when comparing the two Reference Guides.

Changes in Version 4.1 of this Guide Include the Following Changes

By CMS’ request, the guide has been updated with details about WCMSA coordination with other health insurers (Section 4.1.3).

To download the new WCMSA Reference Guide v4.1 click here.

This guide reflects information compiled from all WCMSA Regional Office (RO) Memoranda issued by CMS, from information provided on the CMS website, from information provided by the Workers Compensation Review Contractor (WCRC), and from the CMS WCMSA Operating Rules. The intent of this reference guide is to consolidate and supplant all historical memoranda in a single point of reference. Please discontinue the reference of prior documents.

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Sandy Simpson

29/May/2024

When resolving a workers’ compensation case, the employer looks to see if the injured employee is a Medicare beneficiary and if there will be injury-related future medical care. If the answer to both questions is yes, then they must comply with the guidelines set forth by the Medicare Secondary Payer (MSP) statute.

With healthcare and Medicare costs on the rise and as the open claim moves through the settlement process, below are some settlement objectives to help keep costs down and stay MSP compliance.

WCMSA Arrangement: Centers for Medicaid and Medicare Services (CMS) recommends this method to ensure that Medicare’s interests are protected when settling a workers’ compensation claim that includes future medical expenses. Note that the WCMSA Arrangements are prepared based on today’s costs.
MSP Compliance: Employers are mandated to follow the MSP statute; it will ensure Medicare compliance when considering Medicare’s interest in the settlement. Failure to do so, you could face legal consequences from breaching the settlement agreement. CMS can also obtain reimbursement of injury related payments made from anyone involved in the settlement, including the worker, workplace, insurance companies and attorneys.
Cost Control: Striving to move an open claim toward settlement in the least expensive manner.
Future Medical Care: Employers can help prioritize the injured employee’s well-being for future medical care after settlement by hiring Medivest for Professional Administration services. Medivest Professional Administration ensures the Medicare Set-Aside (MSA) funds are spent according to the allowable guidelines whereby preserving the MSA dollars.

When to Request a WCMSA?

A WCMSA is a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness, or disease that would normally be covered by Medicare. All parties involved in a workers’ compensation case have significant responsibilities under the MSP statute to protect Medicare’s interests when resolving cases that include future medical expenses.

Does the settlement contemplate future medical needs?
Is the injured employee eligible or receiving Medicare benefits?
Has the injured employee applied or re-applied for Social Security Disability Insurance (SSDI)?
Is the injured employee 62.5 years old?

Common WCMSA Cost Drivers

When a Medivest WCMSA Arrangement is ordered, a Cost Driver Analysis report will be included. A Cost Driver Analysis report identifies the various costs that are driving up the WCMSA amount, such as opioids, injections, and surgeries. Below are some common WCMSA cost drivers when a report is prepared.

Poly Pharmacy: The use of multiple drugs and lifetime pharmacy costs.
Implantable Devices: Devices such as spinal cord stimulators, intrathecal pain pumps which also includes replacement cost and mediation refills.
Surgeries and Replacement Costs: Non planned surgeries.

WCMSA Cost Mitigation Strategies

When carriers and employers optimize cost mitigation strategies, they can achieve an accurate and timely settlement. The following are examples of helpful strategies.

RX Drug Cost: Reducing prescription drug costs can be used as a pre-MSA strategy by weaning/tapering off some medications, choosing a generic substitution, or using a physician letter (to address changes in medications.
Cost Drivers: Identify treatments or medications that are driving up the total amount of the WCMSA. Review and possibly implement the recommendations provided in the Cost Driver Analyst report to help reduce the WCMSA amount.
Rated Age: If medical records show evidence of a reduced life expectancy, then a Rated Age may be obtained and used when calculating the WCMSA. CMS approves Rated Ages when used in WCMSAs which reduces the life expectancy thus reducing the overall amount of the WCMSA figure.
Structured Settlement: Fund the MSA with a structured settlement instead of a lump sum. CMS approves MSAs to be structured and Medicare will cover expenses for the injured employee during temporary exhaustion if the MSA allocation was approved by CMS. Also, utilizing a structure can provide significant cost savings for the funding party compared to a lump sum payment.

Ready To Order Your WCMSA?

Begin by completing an online referral by clicking here and upload the following documents.

Most recent 2 years of medical records
Most recent 2 years of Rx invoice
Most recent 2 years of indemnity payouts (Work Comp cases only)

About Medivest

Medivest has worked with carriers and employers for over 2 decades to understand their unique needs and responsibilities to their injured workers. Every WCMSA Arrangement is produced by a highly trained nurse that possesses a wealth of knowledge and experience in the preparation of these reports. We understand that creating and maintaining a WCMSA can be complex, let Medivest prepare your next report. Our nurses and staff hold industry certifications or designations including CMSP, CMSP-F, CPC, MSCC, CSSC, JD, RN, and BSN.

Sandy Simpson

22/May/2024

The Centers for Medicare & Medicaid Services (CMS) has released the Self-Administration Toolkit for WCMSAs version 1.5 on May 15, 2024. The Toolkit replaces Version 1.4 which was released on July 3, 2023.

To download the new Self-Administration Toolkit for WCMSA Version 1.5 click here.

Self-Administration With Additional Help

For injured parties who are considering self-administration, but who also want additional consultation on the process, Medivest provides a Self-Administration Kit. With purchase of the Medivest Medicare Set-Aside Self-Administration Kit, the injured person will receive a one-hour consultation on the proper administration of a Medicare Set-Aside account, covering topics including:

- Where to deposit and hold Medicare Set-aside funds
- Which expenses are allowed to be paid from a Medicare Set-Aside account
- What rates must be used to negotiate and pay for expenses
- How to annually report the Medicare Set-aside to the CMS
- What to do if the MSA funds exhaust temporarily or permanently
- How to discuss a Medicare set-aside with a medical provider
- What are the tax implications of interest earned on Medicare Set-Aside funds

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions about self administration, professional administration or anything else regarding rules and recommendations from CMS, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Sandy Simpson

02/Apr/2024

The Centers for Medicare & Medicaid Services (CMS) released a revised Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (“Reference Guide”) Version 4.0 on April 1, 2024. This Reference Guide replaces Version 3.9 which was released on May 15, 2023. There are a few notable changes when comparing the two Reference Guides.

Changes in This Version 4.0 of this Guide Include the Following Changes:

Instruction specific to beneficiaries has been added to encourage them to use their Medicare.gov access to the portal for the most efficient method of submitting attestations (Sections 11.1.1 and 17.5). This user-friendly mechanism which allows CMS to gain potentially more MSA spending information than it has received via traditional mailing, may lead to CMS denying more future medical claims or potentially considering whether recovery of future medical payments that slipped through the cracks is viable.
The CDC Life Table link was updated (10.3) – available to view here.

To download the new WCMSA Reference Guide v4.0 click here. This guide reflects information compiled from all WCMSA Regional Office (RO) Memoranda issued by CMS, from information provided on the CMS website, from information provided by the Workers Compensation Review Contractor (WCRC), and from the CMS WCMSA Operating Rules. The intent of this reference guide is to consolidate and supplant all historical memoranda in a single point of reference. Please discontinue the reference of prior documents.

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Medivest

25/Mar/2024

On Tuesday April 16, 2024, Centers for Medicare & Medicaid Services (CMS) will be hosting a second webinar regarding the expansion of Section 111 Non-Group Health Plan (NGHP) Total Payment Obligation to Claimant (TPOC) reporting to include Workers’ Compensation Medicare Set-Aside (WCMSA) information. After the first webinar in November, CMS received additional questions and feedback from the industry. The intent of this webinar is to ensure that RREs will be prepared for the change once implemented.

With that in mind, this webinar will include a background recap, summary of technical details, updated timelines and CMP impacts. The presentation will be followed by a question and answer session. Because this expansion impacts reporting of WCMSAs, it is strongly recommended that Responsible Reporting Entities (RREs) that report Workers’ Compensation settlements attend.

Date: April 16, 2024
Time: 2:00 PM EST

Webinar Link: https://cms.zoomgov.com/s/1610015349?pwd=NHcza3NhcDlCdjM0cVhENWlNcFBjZz09
Passcode: 750766

Or to connect via phone:

Conference Dial In: 1-833-568-8864
Conference Passcode: 161 001 5349

Additional information about the most recent updates from CMS can be found here. If you have questions on how topics discussed in this webinar may affect your clients or your company, please contact Medivest or call us at 877.725.2467.

Medivest

06/Dec/2023

On December 4th, 2023, Centers for Medicare & Medicaid Services (CMS) shared a new report titled Workers’ Compensation Medicare Set-Aside (WCMSA) Fiscal Year Statistics 2023. The report provides four fiscal years of data regarding Workers’ Compensation Medicare Set-Aside (WCMSA) Proposed Value and Workers’ Compensation Review Contractor Values (WCRC) from 2020 to 2023.

Takeaways

Total Submissions
Total WCMSA submissions to CMS declined steadily between CMS’ FY 2020 and FY 2022, descending from 16,517 to 13,752, a reduction of almost 17% in three years. FY 2023’s 15,743 submission count represents a reversal of that trend for the time being. This may be the result of the appearance of Section 4.3 in the WCMSA Reference Guide in 2022, in which CMS speaks about “non-submit” or “evidence-based” MSA programs, describing them as “a potential attempt to shift financial burden”.

Proposed vs Recommended
Those who decided to voluntarily submit their proposed WCMSA to CMS for review were rewarded with recommendations that were, all told, 22.95% percent higher than the proposed amount. For comparison, the average percentage difference between the submitter’s proposed MSA and CMS’ recommended MSA for CMS’ FY 2020 through FY 2022 was 13.9%. This is an increase of roughly 65% in CMS’ FY 2023 versus the prior three years’ average. Not only is the counter percentage higher, but the total recommended amount is higher. So, it’s not as if submitters have been lowballing their submissions. For those who embraced a non-submit program for fear of significantly higher MSA counters, CMS dangled no carrots in FY 2023 to encourage a return to voluntary submission.

Proposed MSAs and Total Settlement Amounts
WCMSAs submitted by the industry have, on average, consistently ranged between a proposed amount of $70,439 and $74,847 between CMS’ FY 2020 and FY 2023. Total Settlements utilizing WCMSAs over the same period have averaged between $159,579 and $171,170. Accordingly, WCMSAs constitute around 43% of the total settlement amount in which they are included (pre-CMS recommendation).

Medical vs Rx
Medical expenses with MSAs have increased steadily in recent years and CMS’ FY 2023 is no exception. CMS’ recommended total for the medical portion of submitted WCMSAs is up 13% since 2020. Conversely, Rx expenses have declined by 33%. While several factors are likely to be at play here, CMS’ use of sometimes aggressive NDCs to price drugs may be one culprit. Medivest consistently sees submitted MSAs priced using drug NDCs unavailable in the actual market, and well below market average.

The Big Question

These are statistics from those WCMSA’s submitted for approval, meaning they were written by industry-trained professionals in an attempt to match CMS’ recommended methodology. If the industry is consistent, what has changed at CMS? Also, what does this say about CMS’s position concerning non-submitted WCMSA’s that were written to Evidence-Based Medicine or other non-submit standards in light of the previously modified Section 4.3 of the WCMSA Reference Guide?

For Additional Information

Medivest will continue to monitor changes occurring at CMS and will keep its readers up to date when such changes are announced. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us directly at 877.725.2467.

Natt Reifler, Esq., CMSP, VP of MSP Compliance

14/Nov/2023

On November 13, 2023, CMS hosted a previously announced webinar focused on its upcoming expansion of Total Payment Obligation of Claimant settlement data (TPOC) to be reported under the Medicare Secondary Payer statute’s (MSP) Section 111 Mandatory Insurance Reporting.

The additional TPOC settlement data to be reported specifically includes whether a WCMSA amount was established and if so, any amount above $0.00 so designated, the amount that was approved by CMS (if applicable), the period of coverage (i.e. life expectancy of the injured worker), the funding type – whether funded by lump sum or via a structured annuity (without commenting on any preference or presumptions by CMS if funded one way or another), if funded by structure, the seed amount (a type of down payment estimating the first two years of coverage plus initial surgery for any included body part(s), the anniversary deposit (when additional annuitized payments would be made), the Case Control Number (starts with a W if submitted to CMS for approval or a 0 or 1 if not submitted), and the Professional Administrator’s EIN.

The premise for including the additional WCMSA information with TPOC data is to allow CMS to flag injury related medical diagnosis codes (ICD codes) in the Medicare beneficiaries’ record called the Common Working File (CWF) with a “W” (at least for those WCMSA’s that have been approved) to assist CMS in being more efficient at denying payment for medicals that are injury related and compensated in the TPOC settlement. The Workers’ Compensation (WC) carriers or self insureds appoint Responsible Reporting Entities (RREs) to currently provide Section 111 data for both ongoing claims with Ongoing Responsibility for Medicals (ORMs) and for settlements (TPOCs). Under this expanded reporting data set, RREs would be expected to submit this information for then current Medicare beneficiaries, with testing to occur in 2024 and implementation projected to begin in early 2025 as early as January 2025. While presenter John Jenkins, CMS Health Insurance Specialist, who also presented for CMS when the addition of Section 4.3 in the Workers’ Compensation Medicare Set-Aside Reference Guide (WCMSA Reference Guide) was announced and when CMS modified that language, made it clear that this expanded reporting expectation would not extend to No Fault or liability settlements compensating for future medicals (i.e. NFMSA’s or LMSA’s), he did say it was intended to cover WCMSA TPOC information even if the WCMSA at issue was not submitted to CMS for review/approval. For example, if the WCMSA allocation report used an Evidenced Based Medicine cost projection Method or other non-submit projection method as opposed to a CMS cost projection methodology espoused under the WCMSA Reference Guide, Jenkins explained that there would still be an expectation that this additional data would be reported to CMS.

Jenkins also indicated that once the WCMSA information is reported under Section 111, notification would be sent to the Medicare beneficiary directly.

As background in describing the history of Section 111, Jenkins reminded listeners that Section 111 is part of the federal MSP statute (42 U.S.C. Section 1395y(b)(2) et seq., and that its provisions were added to the MSP pursuant to the 2007 Medicare and Medicaid SCHIP Extension Act (MMSEA)(implemented a few years later). He also pointed out that in addition to the federal MSP statute, the regulations to the MSP are found in the Code of Federal Regulation (CFR) and that 42 C.F.R. 411.46 specifically, reiterates Medicare as a secondary payer to Workers’ Compensation claims (including for both ORM and TPOC’s, and that nothing in the webinar would replace any existing requirements of Responsible Reporting Entities as to thresholds for reporting ORM or TPOC’s).

Answers to questions from the webinar audience were provided by both Steve Forry, CMS Director Division of MSP Program Operations and presenter, John Jenkins, CMS Health Insurance Specialist.

Questions regarding the webinar’s contents and the subject matter may be submitted to CMS via its dedicated Section 111 email address, s111WCMSA@cms.hhs.gov.

Take Aways

This webinar gives us a glimpse as to how CMS intends to address the EBM and other non-submit WCMSA’s that it originally referenced when it added Section 4.3 to the WCMSA Reference Guide. How CMS will be able to require data for something that is not required by law was not elaborated on and is yet to be seen. However, as we in the MSP industry have always understood, while the WCMSA submission process is and has always been voluntary, we always knew that if you submit for approval, you are essentially now in the CMS arena where you will be playing by its guidance/rules. Now, even if you don’t submit a WCMSA for approval, ostensibly for your RRE to be able to complete the Mandatory Insurance Reporting under Section 111, it seems the WCMSA amount and other new data will be available for CMS to assist it in its quest to comply with the MSP and prevent Medicare from paying until the primary plan’s injury related future compensation has been exhausted.

Claimant attorneys should be made aware of this procedure at the time it is implemented so they can field questions that may come back to them by injured workers. Likewise, adjusters handling WC claims may also get follow up calls asking for clarification and what the notification means. Ultimately, this means that representatives for WC carriers and representatives for injured workers should solidify their methods of providing informed consent to their respective clients so that nobody is surprised when a post settlement injury related medical that is usually Medicare covered is denied. For those who establish WCMSA’s, the solution is to bill the WCMSA, document the expenditure (with items and services priced at the respective fee schedule rate and the prescription drugs at Redbook Average Wholesale Price (AWP), and keep up with attestations to CMS on an annual basis so that once exhausted, Medicare would become primary.

What’s New?

A new coversheet is available for any Non Group Health Plan (NGHP) or agent when corresponding with the Commercial Recovery Center (CRC) and can be found here: CRC NGHP Correspondence Cover Sheet (cms.gov)

The NGHP Appeals Quick Reference Guide was updated and is available here: NGHP Submit Appeals Quick Reference Guide April 2023 (cms.gov)

For Additional Information

Count on Medivest to help keep you up to date with the constant updates, guidance, and rule changes related to CMS’s enforcement of the MSP on a regular basis. For questions, feel free to reach out to the Medivest representative in your area by clicking here or call us direct at 877.725.2467.

Older Posts

MMSEA III – December 6, 2024 – NGHP User Guide Downloads 7.8

For Additional Information

Analysis

Proposed MSAs and Total Settlement Amounts

Medical vs Rx

Take Aways

Proposed vs Recommended

The Big Question

For Additional Information

Medivest’s Asure Pro-Admin Helps Protect All Parties

Asure Pro-Admin: Professional Administration for MSA Accounts by the professionals

Self-Asure: The DIY solution with Medivest’s expert support

4 Asure: Easy approach to navigate settlement compliance for Insurer, Self-insured, and TPA without adding ANY work to the adjuster’s already full plate. The streamline process of:

Summary/Takeaways

MMSEA Section 111 Mandatory Insurer Reporting (NGHP)

Self-Administration Toolkit, Version 1.6

WCMSA Reference Guide, Version 4.3

For Additional Information

Changes in Version 4.1 of this Guide Include the Following Changes

For Additional Information

When to Request a WCMSA?

Common WCMSA Cost Drivers

WCMSA Cost Mitigation Strategies

Ready To Order Your WCMSA?

About Medivest

Self-Administration With Additional Help

For Additional Information

Changes in This Version 4.0 of this Guide Include the Following Changes:

For Additional Information

Takeaways

The Big Question

For Additional Information

Take Aways

What’s New?

For Additional Information

Recent Posts

**Medivest’s Asure Pro-Admin Helps Protect All Parties**

Asure Pro-Admin:
Professional Administration for MSA Accounts by the professionals

Self-Asure:
The DIY solution with Medivest’s expert support

4 Asure:
Easy approach to navigate settlement compliance for Insurer, Self-insured, and TPA without adding ANY work to the adjuster’s already full plate. The streamline process of: