Don’t Rely on an MSP Conditional Payment Notice when Executing a Settlement Agreement and General Release

In a recent decision on 3/13/2018, Mayo v. NYU Langone Medical Center, the courts voided a settlement on the grounds of a mutual mistake because both the plaintiff and defense relied upon a conditional payment notice rather than a conditional payment demand or initial determination. The plaintiff provided a conditional payment notice that was dated several months prior to settlement in the amount of $2,824.50, which represented what the Centers for Medicare and Medicaid Services (CMS) believed to be payments made by Medicare at that time.

After the settlement was reported, CMS issued a demand in the amount of $145,764.08 to the estate of the Medicare beneficiary, who had exhausted all appeals with CMS in an attempt to reduce the Medicare recovery amount. The court rejected the arguments from the defense, stating that it was the plaintiff’s responsibility to obtain the final conditional payment amount from Medicare.

Best practices include obtaining a conditional payment notice pre-settlement so that all parties are aware that related conditional payments demanded must be reimbursed to Medicare. Settlement language must be clearly worded so that the parties know who is obligated to repay Medicare and whether the conditional payment reimbursement will be paid “out of” or “in addition to” the total settlement amount. When a settlement involves a Medicare beneficiary, both parties should not close their files until confirmation that conditional payment recovery has been fully satisfied.

Optum Settlement Solutions can provide assistance in:

  • Researching the Medicare Secondary Payer Recovery Portal to track potential conditional payments assigned, or added, to your claim, including interest being accrued
  • Obtaining a conditional payment summary pre-settlement so you may evaluate your case and plan your negotiation strategy
  • Providing notice to CMS of a settlement date and amount to elicit a final amount owed
  • Reviewing Medicare Secondary Payer (MSP) compliance settlement language
  • Appealing unrelated conditional payments demanded by CMS recovery contractors
  • Assuring that the MSP conditional payment debt has been fully satisfied

Frank Fairchok Rejoins Optum Settlement Solutions

Optum is pleased to announce that Frank Fairchok has recently rejoined the settlement solutions team as vice president of Medicare compliance reporting and development. Frank will be responsible for MedicareConnect, our industry-leading platform for MMSEA Section 111 — Medicare Secondary Payer Mandatory Reporting — for non-group health plans. He will also help drive new product and technology growth for the division.

Frank originally joined Optum in 2010 and was instrumental in launching MedicareConnect. He managed the platform from the start of live reporting with CMS in January of 2011 and quickly brought it to the forefront of the industry with its capability and accuracy.

Frank has 30 years of business experience in the financial, telecom and workers’ compensation industries and holds a Bachelor’s Degree in Technology Management.

CMS Releases Update to WCMSA Reference Guide

The Centers for Medicare and Medicaid Services (CMS) released an update to their Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (version 2.7) with two changes. To view the reference guide, click here.

  1. Section 14.0 (page 51), Appendix 1 and Appendix 5: This update provides the new Workers’ Compensation Contractor (WCRC) phone number: 833-295-3773 and hours of business, 9 a.m.–5 p.m. EST, Monday–Friday.
  2. The Confidentiality Statement now states the Medicare beneficiary must provide a written request or explicit written consent/authorization for a party to obtain information from CMS regarding the Medicare beneficiary.

As indicated by CMS in their March 7, 2018 teleconference, Capitol Bridge is the new WCRC. No material changes were made to the reference guide related to the WCMSA review process.  Please continue to watch this site for additional updates, news or trends from CMS.

Prescription drug updates may positively affect Medicare Set Aside

As part of our best business practices, we continually monitor RED BOOK®Average Wholesale Price (AWP) of the most common medications present in Workers’ Compensation Medicare Set-Aside (WCMSA) arrangements. This practice assists in identifying price changes positively affecting WCMSAs.

The month of February brought price drops of the following medications:

  • buprenorphine/naloxone (Suboxone®) commonly prescribed for opioid dependence
  • diclofenac (Voltaren®) in multiple strengths used to treat pain
  • methadone (Dolophine®) commonly prescribed for detoxification or pain management
  • bupropion (Wellbutrin®) in multiple strengths prescribed for depression
  • clonazepam (Klonopin®) used for anxiety or panic disorders
  • quetiapine (Seroquel®) commonly used to treat bipolar disorder, depression or schizophrenia
  • tramadol (Ultram®) used to treat pain

The products in the following table have a reduced AWP, confirmed in the Centers for Medicare and Medicaid Services (CMS) WCMSA portal.

Product Name

NDC Code

Dosage Form


AWP Unit Price Reduction

Bupropion Hydrochloride



150 mg


Bupropion Hydrochloride



300 mg


Diclofenac Sodium



75 mg


Buprenorphine Hydrochloride/Naloxone Hydrochloride



8/2 mg





0.5 mg


Diclofenac Sodium



50 mg


Quetiapine Fumarate



50 mg


Tramadol Hydrochloride



50 mg


Methadone Hydrochloride



40 mg


Please note that RED BOOK AWP is subject to change and this pricing is subject to an increase or decrease in the future.

CMS uses the lowest AWP when reviewing a WCMSA. The lower price of these medications will immediately affect the prescription costs for WCMSAs (both present as well as prior WCMSA’s that have not settled and there is no CMS determination issued). We will contact our clients in reference to previously completed WCMSA’s where these medications have been prescribed. It is our recommendation that carriers, TPAs and claim handlers review cases to determine the benefit from decreased cost of these medications.

Optum will continue to keep the industry informed of changes in AWP pricing, in addition to when generic equivalents enter the market.