Author Archives: Lavonya Chapman

MSA Optimism for the New Year

The Centers for Medicare & Medicaid Services (CMS) announced the organization will be reconsidering a new policy in 2017 regarding re-reviews of otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. According to the CMS announcement, this new policy would only apply to claims “where settlement has not occurred.” As such, if settlement has been agreed upon CMS will not consider a re-review. The timing of any such change, however is yet unknown.

The Centers for Medicare & Medicaid Services recently revisited the task of reviewing its process for addressing requests for CMS to “re-review” otherwise approved Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) amounts. In Calendar year 2017, CMS expects to update its existing re-review process to address situations where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially. CMS also expects its updated process to address situations where certain states rely on Utilization Review Processes to justify proposed WCMSA amounts.

At present, CMS provides no formal appeal process. Rather, a one shot re-review process allowing submitters to provide new and different information not previously considered so long as the new and different information predates submission of the case to CMS. Employers, insurers and claimants are also unable to obtain revised MSA approval following a significant change in the claimant’s pre-settlement medical condition.

In addition, CMS will be issuing a policy regarding use of utilization review in MSA submissions in certain states where there is reliance on Utilization Review Processes (UR) to justify proposed WCMSA amounts. Currently, CMS generally recognizes California UR determinations as a limitation on medical care in the MSA if upheld through the statutory Independent Medical Review (IMR) process. Other state UR processes, however, have not been recognized as they are not considered by CMS to be final determinations.

While many states do not rely on UR processes to allocate MSAs, many stakeholders do rely on state law to justify a suggested MSA amount. Unfortunately, CMS policies do not always take into account the statutes used to adjudicate the underlying claim.

A revised MSA re-review process along with an accurate interpretation of state law will allow stakeholders to question the reasonableness of CMS’ counter-higher demands. Such changes will also give stakeholders the opportunity to provide the documentary support needed to explain their proposal and give MSP stakeholders a valid and meaningful appeals process with which to challenge proposed WCMSAs. Whether this announcement will eventually allow for a hearing or a neutral decision maker to review, or other administrative and judicial appellate rights, remains to be seen. Nevertheless, we are optimistic about the potential expansion of the CMS MSA Re-Review process where there has been a substantial change in medical care as this gives insurers, employers and claimants another opportunity to more appropriately settle workers’ compensation claims with open medical benefits. The ability to rely on applicable state statutes during the WCMSA process is similarly encouraging.

Will CMS raise the bar for Zero MSA Allocations?

For many years, the Centers for Medicare and Medicaid Services (CMS) would approve a zero MSA allocation if the submission met the following criteria, along with supporting documentation, was provided as proof thereof:

  1. The claim had been denied
  2. There had not been any
    1. indemnity payments
    2. paid medical expenses
    3. prior indemnity settlement

CMS announced today (11/1/2016), that effective immediately, the Workers’ Compensation Review Contractor (WCRC) will utilize procedures that were previously in effect in reviewing zero MSAs. Additionally, despite not specifically announcing plans to do so, there are indications that CMS may be re-evaluating an internal rule associated with denied and zero MSA allocations that is being misinterpreted. If pursued, the revisions stand to raise the bar for approval even higher. If implemented, CMS plans to use the following three-pronged test in order for a Medicare Set-Aside (MSA) to qualify for a zero allocation:

  1. The claim itself or the injury alleged had been initially denied in its entirety
  2. There has been no medical or indemnity payments for the claim or alleged injury, and no acceptance of ongoing responsibility for medicals (ORM) reported
  3. There has been either a final judicial determination after an evidentiary hearing on the merits eliminating the employer of responsibility, OR there exists medical records or documentation from the Medicare beneficiary’s treating physician indicating that no future treatment is anticipated.

Said another way, CMS may only approve a zero allocation if it can be determined that no compensable workers’ compensation claim exists, or no future medical expenses are anticipated, and no payments to the contrary have been made. You may ask, if I have one of the items listed above in number three, would I really need to have an MSA allocation at all?

There is no indication that zero MSA allocation changes will be a topic of discussion at the recently announced CMS Town Hall Teleconference scheduled from 1:00 to 2:30 p.m. EST on Nov. 17, 2016. The subject of the teleconference was listed as pertaining to: Ongoing Responsibility for Medicals (ORM) recovery, Final Conditional Payment (CP) process reminders, and Medicare Secondary Payer Recovery Portal (MSPRP) improvements. However, inquiry about zero MSA allocations may occur. To participate, you may call (800) 603-1774 and enter the pass-code: 987659 between 5-10 minutes before the event begins. For now, you may proceed as usual as CMS states it will publish any pending changes when or before they go into effect. Additionally, denied or zero MSAs are still being reviewed without a court order. However, if you have a zero MSA in the future, you may wish to:

  1. Submit treatment records from the treating physician demonstrating no further treatment for the claimed injuries/illnesses will be required
  2. Obtain, and provide CMS, a judiciary ruling after a hearing on the merits regarding the compensability of the claim
  3. Review and if applicable, proceed to finalize as a strict compromise settlement as defined by CMS guidelines rather than submit.

If you have questions, please contact Lavonya Chapman, Esq., RN, CMSP; Optum, Medicare Secondary Payer Compliance Counsel, Settlement Solutions, 813-612-5525,

*Note: CMS approval of zero MSAs is intended for commutation claims. You may wish to refer to the WMCSA Reference Guide to determine whether your claim is considered a “compromise” versus “commutation” type settlement. See ยง 4.1.1 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, version 2.5, revised 4/4/2016.

The Medicare Secondary Payer Recovery Portal Updates User Functionality

Since the Commercial Repayment Center (CRC) became a non-group health plan (NGHP) recovery contractor, inconsistent information from the Medicare Secondary Payer Recovery Portal (MSPRP) has led to questions about the MSPRP reliability which may be improved by the recent release of a revised MSPRP User Guide, version 3.5. The update, released by the Centers for Medicare and Medicaid Services (CMS), improves consistency of the exhibited MSPRP data, showing the CRC case statuses which have been revised to better correspond with the statuses for Benefits Coordination & Recovery Center (BCRC) cases. (Table 13-2) According to the first chapter of the revised guide, several updates are intended to improve functionality.

Authorization to act as recovery agents

  • Allows recovery agents who are associated with an insurer-debtor case as the insurer’s Section 111 Mandatory Insurer Reporting (MIR) agent to submit a Recovery Agent Authorization through the portal.
  • Permits verified recovery agents to act on behalf of the identified insurer-debtor both pre- and post-demand. (Section 10.3.3)
  • Provides MIR recovery agent automatic authority to act on behalf of an insurer-debtor pre-demand. (Section 111)

Ability to edit settlement information that was submitted via the portal

  • Permits authorized users to revise settlement information via the portal prior to initiating a demand. The portal will allow users to view settlement information after submission.
  • Allows users to add or update settlement information after clicking the “Initiate demand letter” action on the “Case information” page. (Section 13.1.10)
  • Permits authorized users to view read-only settlement information after it has been submitted. (Section 13.1.9)
  • Renames the action to “Provide the notice of settlement information” on the “Case information” page as “View/provide the notice of settlement information.”

Provide new functionality for conditional payments

  • Provides similar BCRC functionality for CRC cases where users may now request an update to the conditional payment amount. (Section 13.1.2)
  • Allows beneficiaries and beneficiary representatives who log in using multi-factor authentication to request an electronic conditional payment letter (eCPL), or a mailed copy of the conditional payment letter (CPL). Representatives must have verified proof of representation (POR).
  • Allows beneficiaries and beneficiary representatives (with POR) who use multi-factor authentication to request and receive an electronic or mailed version of the “no claims paid by Medicare” letter where the overpayment amount equals $0.00. (Section 13.1.3)
  • Permits authorized users to submit unlimited disputes any time prior to the demand, after a conditional payment notice (CPN) or a CPL has been issued. (Section 13.1.5)
  • Via notification, informs users that the final conditional payment amount can be selected only once, and that it may be different from the final amount on the confirmation page. (Figure 14-4)
  • Removes the word “new” from “Final conditional payment process” section of the “Case information” page. (Figure 13-1)


The improved functionality of the MSPRP will permit recovery agents, insurers, responsible reporting entities (RREs) and third party claims administrators (TPAs) better access to digital records for more efficient claim management. In addition, the portal will allow an unlimited number of pre-demand disputes to be uploaded. Only recovery agents, insurers, RREs or to TPA claim adjustors have authority to request conditional payment correspondence through the mail and only Medicare beneficiaries, their attorneys and others with the written consent of the Medicare beneficiary can request and obtain eCPLs.

Insurers, RREs or recovery agents can only obtain an eCPL with the Medicare beneficiary’s consent, but any debtor insurer/RRE can request conditional payment updates to be sent via U.S. mail. Additionally, RREs and recovery agents will now be able to request updated conditional payment amounts via the portal, mail, telephone or fax.

The revised user guide makes no mention of the reliability of the CRC recovery case information contained in the MSPRP; however, the revisions may be a step toward better consistency.

The SPARC Act and Compliance with Medicare Advantage plans PART D prescription drugs

Haro v. Sebelius- Medicare Conditional Payment CollectionIn September, Congressman Tim Murphy (R-PA) and Congressman Ron Kind (D-WI) introduced bipartisan legislation into the U.S. House of Representatives to improve the Medicare Secondary Payer (MSP) Act as it pertains to the Medicare Prescription Drug (Part D) program. The Secondary Payer Advancement, Rationalization and Clarification (SPARC) Act (H.R. 6120) would clarify the Part D Medicare Secondary Payer (MSP) provisions with specific parameters to follow when resolving claims that involve Medicare beneficiaries who have related claims that were paid by Medicare Part D insurance plans.

The SPARC Act is anticipated to diminish the ambiguity associated with the Medicare Secondary Payer (MSP) claim compliance process and allow for efficient repayment of amounts owed from claims to be paid directly to the Medicare Part D Prescription Drug Plans (PDPs). Since the MSP provisions of the Social Security Act prohibit Medicare from making payment where payment has already been made or can reasonably be expected to be made by a primary plan, the payments made by the Part D plan are paid conditionally, with the expectation that the conditional payments would be reimbursed, once primary payment responsibility is demonstrated by accepting ongoing responsibility for medical (ORM) expenses and/or by settlement, judgment or award.

Current Medicare beneficiaries with workers’ compensation, no-fault, and/or liability claims experience uncertainty and delays in settling claims, because it is difficult to find out how much money has to be repaid to Part D Plans upon settlement. As such, the Part D plans are not promptly reimbursed for medications prescribed to Medicare beneficiaries that are related to the treatment of their injuries.

  • Expedited repayment procedures proposed by the SPARC Act are designed to avoid wasting claim, judicial, governmental and taxpayer resources, not to mention the Medicare Trust Fund. The SPARC Act would:
  • Require the Centers for Medicare and Medicaid Service (CMS), to convey settlement information to Part D Plans, coordinating benefits within 15 days of receipt
  • Require Part D drug plans to instruct pharmacies to bill entities that have accepted ORM benefits
  • Prevent Part D plans from paying for prescription medication when other plans are responsible

If the SPARC Act passes, it is expected to enable Medicare beneficiaries to settle claims sooner. It will also enable insurers to resolve claims quicker, with greater certainty, and the Part D Prescription Drug Plans, as well as the Medicare Trust Fund, will be efficiently reimbursed.

The bill, however, doesn’t specify how workers’ compensation insurers should account for the shifting of pharmacy costs to Medicare post settlement. It seems that injured workers would want apportion a part of the total settlement amount toward related prescription costs needed in the future; however, the SPARC Act, as written, would make workers’ compensation insurers responsible for prescriptions reimbursement until the settlement of a Medicare beneficiary’s workers’ compensation claim. Afterward, Medicare’s Part D plan would become the primary payer, thus eliminating the need for the workers’ compensation Medicare Set-Aside (WCMSA) arrangement to allocate for prescription drugs otherwise covered by the Part D plan. Regardless, many state workers’ compensation statutes may still require prescriptions to be allocated in the WCMSAs even if SPARC Act is enacted.