Category Archives: Medicare Secondary Payer (MSP)

Medicare Secondary Payer (MSP)

MAP and PDP Private Cause of Action Suits Not Just a Fad

If you are keeping up with Medicare Secondary Payer (MSP) trends and updates, then you know that Medicare Advantage Plans (MAPs) and Prescription Drug Plans (PDPs) private cause of action suits continue to be the rage, with case law arising in federal district and circuit courts across the country. When you add the recent announcement from the Centers for Medicare & Medicaid Services (CMS) that Medicare Advantage premiums will decline while plan choices and new benefits increase, it’s no wonder enrollment is projected to reach a new all-time high with more than 36 percent of Medicare beneficiaries expected to be enrolled in Medicare Advantage in 2019. With more Medicare beneficiaries switching from Medicare Parts A and B traditional coverage to Part C Medicare Advantage coverage, more and more of these MAPs will be providing your insured, and therefore your potential claimants, with Medicare benefits related to your claim. So, if you thought MAP and PDPs’ Medicare Secondary Payer private causes of action were a fad, think again.

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Trends affecting Workers’ Compensation Medicare Set-Aside Allocations

Capitol Bridge, LLC, the newest Workers’ Compensation Review Contractor (WCRC) for the Centers for Medicare and Medicaid Services (CMS), officially took over on March 19, 2018. Since that time, the Medicare Set-Aside (MSA) industry has noticed aggressive changes in the Workers’ Compensation Medicare Set-Aside (WCMSA) review process, resulting in an increase in WCMSA allocations.

At Optum, it is our practice to monitor CMS determinations to identify changes in the WCMSA voluntary review process and provide an update to our clients. This effort helps avoid counter-high discrepancies that occur when the WCRC makes a change to the methodology used to review WCMSAs.

The following is a summary of changes affecting WCMSA’s.

Urine Drug Screens increase in frequency

Starting in July of 2018, the WCRC changed its protocol for urine drug screening (UDS) when an opiate medication is included. Up to this point, it was standard practice to allow for one UDS annually, unless the treating physician is ordering them more frequently based on risk assessment.  The WCRC is now allocating a minimum of four UDSs annually when opiate (Schedule II narcotic) medications are prescribed (Tramadol is not a Schedule II narcotic).

Optum received the following statement from the CMS regarding this change:

“When changes were made to prescribing requirements related to hydrocodone products back in 2015, UDS requirements were set to match prescribing needs. Now that prescribers may only write single monthly prescriptions without refills and up to no more than three prescriptions between visits, UDS expectations were set to each of those visits unless the prescriber was ordering them more frequently.” 

According to The Official Disability Guidelines (ODG), the frequency of urine drug testing should be based on documented evidence of risk stratification, including use of a testing instrument. Allocating for four UDSs per year for all claimants using Schedule II opioid analgesics does not appear to be consistent with the current clinical guidelines, which promote performing an individual risk assessment for each patient. Due to the heightened awareness of the risks associated with opiate analgesics, it is felt that the WCRC is taking a more conservative approach in order to assure proper safety. However, each case is different and guidelines support the treating physician making an assessment that is specific to each patient.

The increased frequency in drug testing is causing an increase in WCMSAs. Additionally, the pricing for the UDS tests have also increased in every state. CMS explained their rationale for the increases on several cases as follows:

  • “The claimant was prescribed opiate medications. Therefore, frequency of urine drug screens was increased from once per year to four times per year” (Resulted in an $8,824.00 counter high).
  • “The frequency of the urine drug screen testing is higher than the proposed frequency and the medical pricing of this test is higher than the proposed pricing” (Resulted in an $8,609.00 counter high).
  • “Additional medical services are indicated including increased frequency of urine drug screens for monitoring of opioid medications” (Resulted in a $7,896.00 counter high).
  • “Additional medical services are indicated, increased frequency of urine drug screens based on the opiate prescribed” (Resulted in a $14,562.00 counter high).

Lyrica® now routinely included in WCMSAs

Please click here to read our in-depth blog regarding the WCRC including Lyrica in WCMSAs.

Liberal interpretations of surgical recommendations

Recently, the WCRC included a future surgery where the physician stated, “With regard to the potential need for future treatment if he (the claimant) does develop arthritis of the subtalar joint and has persistent pain which cannot be controlled through other methods he may require a subtalar joint arthrodesis.”

This statement is not a conclusive recommendation for future surgery. First, surgery is needed only if the claimant develops arthritis and, secondarily, if the associated pain is not controllable through other measures. This statement was certainly not indicative of a firm recommendation from the physician that this treatment would be medically necessary in the future. Several things need to occur in order for surgery to be needed in the opinion of the physician.

The Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide Version 2.8 indicates:

“If the item is recommended in the medical record and is covered by Medicare, it will be included in the WCMSA, regardless of whether it follows medical association guidelines. The WCRC makes every effort not to include services that are not recommended in the medical records unless the service is always part of the treatment. The WCRC reviews proposals on a case-by-case basis. They consider the treatment and usage patterns, the recommendation of the treating providers, life expectancy, functional status, responses to treatment and effectiveness of therapies as established in the records. The WCRC references evidence-based guidelines as resources in determining future treatment.”

The CMS determination letter indicated:

“On 3/28/2018, it is noted that claimant might require the use of an orthotic and if claimant developed arthritis of the subtalar joint with persistent pain that could not be controlled through other methods, a subtalar joint arthrodesis might be needed. Future treatment will include: physician visits, diagnostic studies, physical therapy, ankle surgery and orthotic/cane.”

Optum resubmitted this case requesting all treatment added by the WCRC in relation to the ankle surgery be removed. The WCRC declined the request and stated that the “after review of the existing records, on 10/25/2017, x-rays completed revealed reduced joint space with some broadening of the calcaneus. This is indicative of subtalar joint arthritis.” 

There was no indication in the medical records that there was a diagnosis of arthritis. The statement from the treating physician alone confirmed this, since the physician indicated that the surgery is needed only “if” the claimant develops arthritis. Additionally, it is difficult to predict whether the claimant would have pain not controllable by other more conservative methods. We do not agree with this determination by the WCRC and feel that there is no current evidence to support its inclusion.

Increased turnaround times

The previous WCRC had a turnaround time of approximately nine days. The current WCRC is averaging 25 days for review of a WCMSA. We are hopeful that over time, the turnaround times will decrease and be more in line with the previous contractor.

As always, we will continue to update the property and casualty insurance industry with news, trends or additional updates from CMS and the WCRC.

CMS Releases NGHP Section 111 User Guide Version 5.4

As an established Medicare Secondary Payer (MSP) compliance services provider, one of our goals is to keep clients, and the property and casualty insurance industry, informed of changes affecting MSP compliance. On October 1, 2018, CMS released an updated Non Group Health Plan (NGHP) User Guide, version number 5.4. This release contains several updates that are summarized here.

The first update is a disclosure regarding the Paper Reduction Act (PRA). This disclosure, found on page iii of Chapter I – Introduction and Overview, relates to the PRA of 1995, an amendment to PRA of 1980, intended to reduce the paperwork burden on businesses and citizens imposed by federal government agencies. This portion of the update does not have any impact on NGHP Section 111 reporting and is for informational purposes only.

The next update is a reminder from CMS that Responsible Reporting Entities (RREs) should submit the policy number uniformly and with a consistent format so that updates are applied to recovery cases correctly. The update states:

“To ensure updates are applied to recovery cases appropriately, RREs are asked to submit the policy number uniformly with a consistent format. When sending updates, enter the policy number exactly as it was entered on the original submission, whether blank, zeros, or a full policy number (Appendix A, Claim Input File, Field 54).”

Please note, our analysis of this change determines that the wording above is inconsistent with other areas of the User Guide. Specifically, the policy number field cannot be submitted to CMS as “blank” as stated above, which would mean padding the field with spaces in the claim input detail record. Optum has confirmed with the BCRC that no changes have occurred making policy number a non-required field. The policy number must contain at least a three character length valid policy number or be completed with all zeros. Submission of a blank policy number will result in the claim being rejected by CMS with the CP04 error code. Clients utilizing Optum’s MedicareConnect platform for NGHP Section 111 reporting can rest assured that our validations will properly evaluate your data, allowing for continued 100 percent acceptance rate for submitted claims.

The next update occurs in the Chapter V appendices. Appendix I lists ICD-9 and ICD-10 diagnosis codes not allowed for NGHP Section 111. Likewise, Appendix J contains ICD-9 and ICD-10 diagnosis codes not allowed on no-fault plan insurance type claims for NGHP Section 111. These updates include the following:

  • Placement of decimals for the ICD-10 Excluded “Y” diagnosis codes has been corrected (Appendix I).
  • The excluded and no-fault excluded ICD-10 diagnosis codes have been updated for 2019 (Appendix I and Appendix J).

The last update involves a contact name change in multiple chapters of the User Guide. This change removes Jeremy Farquhar’s contact information and includes a new escalation contact due to Jeremy’s departure from the BCRC in August 2018. In cases needing escalation, the new EDI Director is Angel Pagan, available via phone at (646) 458-2121 or e-mail at

As a senior leader in mandatory insurer reporting, Optum Settlement Solutions looks forward to working with Mr. Pagan in providing our clients with MSP compliance industry leading advice, expertise, support and services.

Optum would also like to take this opportunity to thank Mr. Farquhar for the many years of incredible support he provided Optum and the entire NGHP community. We wish him the very best in the future.

Click here to access the updated User Guide.

Should you have any questions about the information presented above, please contact Frank Fairchok via email at

CMS issues WCMSA Reference Guide Version 2.8

As an established Medicare Secondary Payer compliance services provider, one of our goals is to keep clients and the property and casualty insurance industry informed of changes affecting MSP compliance.

On October 1, 2018, the Centers for Medicare and Medicaid Services (CMS) released an update to the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (version 2.8). The notable changes are as follows:

  1. As required by Section 501 of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act (MACRA) of 2015, CMS will discontinue all Social Security Number (SSN)-based Medicare identifiers and distribute a new 11-byte Medicare Beneficiary Identifier (MBI)-based card to each Medicare beneficiary by April 2019. All fields formerly labeled as Health Insurance Claim Number (HICN) are now labeled as “Medicare ID” and can accept either a HICN or the new MBI.
    • Page 3 of the WCMSA Reference Guide refers to this update when contacting the Benefits Coordination & Recovery Center (BCRC) to confirm the injured person’s Medicare ID (HICN, MBI or SSN).
    • Page 33, under Section 05 – Cover Letter (WCMSA submission letter) indicates: Claimant’s Medicare ID (HICN or MBI) as displayed on their Medicare card or their SSN, if not yet entitled to Medicare, is required in the submission.
    • Page 63, Appendix 2: The Abbreviations List now includes MBI – Medicare Beneficiary Identifier.
    • Page 67, an update to the definition of Social Security Number: The SSN is an identification number issued by the Social Security Administration and used instead of a Medicare ID (HICN or MBI) when the Medicare ID is not present.
    • All of the sample letters found in Appendix 5 change SSN or HICN to Medicare ID or Medicare ID/SSN.
  2. An updated link to the CDC Life Expectancy Table is located on page 41 under Section 10.3, number 7:
  3. An update to the jurisdiction and calculation method for medical reviews (Table 9-1 and Table 9-2):
    • Table 9-1 added one additional scenario in its order of precedence, number 6, stating: If the WC carrier’s attorney does not have an address in the state in which the WC claim was filed, then the pricing will be based on the zip code of the injury address.
    • Table 9-2 is a completely new table for the WCMSA Reference Guide.
      • If a case is filed with the U.S. Department of Labor Office of Workers’ Compensation Programs (OWCP); pricing is based using the OWCP Fee schedule
      • If submitted documentation indicates that a proposed WCMSA amount is based upon a Longshore Harbor Workers’ Compensation Act settlement; pricing is based on the OWCP fee schedule for the zip code of claimant’s residence, unless the submitter specifies actual charges
      • If a state WC fee schedule does not exist based on the jurisdiction evaluation above (Indiana, Iowa, Missouri, New Jersey, Virginia, and Wisconsin); Pricing is based using actual charges, even if the submitter proposed the use of a fee schedule
      • If a state WC fee schedule exists based on the jurisdiction evaluation above; Pricing is based on the most current version of the fee schedule posted publicly

As an established Medicare Secondary Payer compliance services provider in auto, liability, no-fault and workers compensation claims, Optum Settlement Solutions remains the leader in providing accurate and affordable mandatory insurer reporting, conditional payments resolution and set aside allocations, approval and administration services.
As always, we will continue to update the property and casualty insurance industry with news, trends or additional updates from CMS and the WCRC.