Tag Archives: Workers’ Compensation Review Contractor

MSP Predictions for 2014

  1. 1. Conditional Payment Processes will improve- CMS announced on December 23, 2013 that it will launch the Benefits Coordination and Recovery Center (BCRC) on February 1, 2014. The two units that will be consolidated are the Coordination of Benefits and the Medicare Secondary Payer Recovery units. They will collectively be called the BCRC, and the consolidation is aimed at creating greater efficiencies in resolving claims and eliminating confusion caused by two separate contractors. The new BCRC should accelerate conditional payment disputes and make the overall process easier. However, it has been rumored that the new BCRC will pursue conditional payment reimbursement on cases where open ORM is reported. Traditionally, Medicare only seeks reimbursement of conditional payments after a case settles or TPOC is reported. This will create additional revenue for Medicare in that it will be able to recover conditional payments on cases where future medicals remain open.
  2. CMS/WCRC WCMSA Processes will also improve- the WCRC should continue to improve their communication with the industry on their allocation methodology. In 2013, the WCRC issued a more detailed WCMSA Reference Guide, held their first WCMSA teleconference, and turnaround times on WCMSA approvals vastly improved. In 2014, it is expected that the WCRC will continue with their efforts to make the WCMSA process quicker, smoother and more predictable for all involved.
  3. Continued Divergence of Case Law on LMSAs will continue- In 2013, we saw a great deal of case law where parties to liability settlements brought their LMSA disputes to the court system hoping for resolution on the potential need for an LMSA. We had jurisdictions that refused to intervene on the LMSA issue- in Florida in the Early v. Carnival Corp. case, the court found that intervening on whether an LMSA was required would amount to issuing an “advisory opinion” and therefore the court declined opining on the need for an LMSA. However, in Mississippi in the Welch v. American Home Insurance Company case, the court not only reviewed the proposed amount of the LMSA, but increased the amount that was needed! These are just a few examples that demonstrate case law with regard to LMSAs was all over the map last year.This could potentially be resolved in 2014 if CMS continues working on the rulemaking concerning MSP and Future Medicals. As we blogged about in August of last year, CMS noted on its regulatory calendar that it was going to resume its rulemaking on this topic this past September.  However, CMS did not take any further action on this topic in 2013.  If CMS resumes the process on this in 2014, we could receive clarity as to obligations with regard to future medicals in liability settlements with Medicare beneficiaries.
  4. The SMART Act: Rulemakings will set the stage for action in 2014, however most items will not be in place until 2015 or later. In 2013, CMS issued several rulemakings pertaining to required action items from the SMART Act.
  • First, CMS issued an interim final rule which would create a conditional payment web portal. While CMS is applauded for taking action on this item from the SMART Act, the interim final rule left much to be desired, with one of the main disappointments being that the roll-out deadline would be January 1, 2016. One can only hope that the comments received on this interim final rule will push CMS to roll out the portal sooner than indicated as well as resolve other issues present in the interim final rule. However, because CMS has indicated that roll-out will be January 1, 2016, it is unlikely that we will see much action on this item this year.
  • Second, CMS issued an ANPRM which would carve out circumstances where penalties could be imposed for violations of MMSEA Section 111 reporting requirements. We may see some movement and actual rules carved out in 2014 for the circumstances where CMS may issue penalties. However, until the process is set into place, which will likely not be until mid-end of 2014, we will not see penalties
    issued. Our prediction on this item is that actual penalties will not be issued until sometime in 2015.
  • Third, CMS issued an NPRM for an appeals process to be utilized by applicable plans for conditional payment disputes. It appears likely that this appeals process could be rolled out this year, in that it is only for conditional payments (and not WCMSAs), and because it will mirror the existing appeals process currently in place for Medicare beneficiaries.
  • Lastly, we will see pressure on CMS this year to create and publish an annual threshold wherein conditional payments would not have to be reimbursed and the settlement would not be reportable under MMSEA Section 111. This action item of the SMART Act should have already been in effect; CMS was supposed to publish this amount on November 15, 2013 and the threshold would have begun on January 1, 2014. But CMS did not take action on this item in 2013. We should see that pressure upon CMS from the industry aas well as MARC (who was responsible for getting the SMART Act approved) will force a hand in publishing this threshold.

2014 should be an interesting year full of MSP-related events. Count on PMSI Settlement Solutions to keep you up to date, in compliance, and ahead of the curve!

 

CMS Issues New WCMSA Reference Guide (Part 2)

On November 7th, we notified our subscribers that CMS had issued a new WCMSA Reference Guide (dated 11/1/2013). To access our prior blog which contains a high-level overview of the new Reference Guide, please click here.

Since our last blog posting, PMSI has conducted a thorough review of the WCMSA Reference Guide and would like to highlight some of the more noteworthy updates. The Reference Guide can also be found on the CMS website here.

  • In Section 8 of the Reference Guide, CMS clarified that “If the parties to a WC settlement stipulate a WCMSA but do not receive CMS approval, then CMS is not bound by the set-aside amount stipulated by the parties, and it may refuse to pay for future medical expenses in the case, even if they would ordinarily have been covered by Medicare. “

PMSI Comments: While this information is not necessarily new, it is interesting that CMS has now explicitly stated this point. CMS does go on to state within this section and acknowledge that there are no statutory or regulatory provisions requiring the submission of a WCMSA proposal to CMS for review.

  • In Section 9.4.4 of the Reference Guide, Step 5,CMS states that if a state institutes or changes a fee schedule, the WCRC will apply the new fee schedule immediately upon learning of its official publication, regardless of official effective date, for any case still in process on that date.

PMSI Comments: While PMSI supports CMS staying up to date on a state’s most current fee schedules, to adopt a new fee schedule to an MSA that is already in process for review at CMS may make the submission process unpredictable for submitters. Additionally, submitters are not aware of how often CMS checks for updates and how soon it will be able to adopt the new fee schedules, etc.

  • In Section 9.4.5 of the Reference Guide, CMS clarified frequency and/or pricing for various medical items such as MRIs, CT scans, surgical procedures and trials.

PMSI Comments: Submitters appreciate this guidance from CMS which will be helpful in understanding how CMS allocates for these items.

  • In Section 9.4.6.1 of the Reference Guide, CMS clarified that the WCRC continues to price Part D drug products based on AWP and further based on brand or generic drug pricing. AWP pricing is pulled from a proprietary source, Truven Health Analytics’ Red Book database. The WCRC uses a program for drug pricing that uses Red Book flat files updated quarterly, and soon to be updated monthly. For generic drugs, the WCRC uses the lowest non-repackaged generic drug AWP.

PMSI Comments: The industry collectively has been seeking to pinpoint how often CMS was updating its Red Book pricing. While many submitters receive updates from Red Book daily, it was never published how often CMS was updating their pricing. PMSI appreciates this update from CMS and hopes that CMS will continue to keep the industry apprised of any changes to how often it updates its Redbook pricing, but remains concerned that submitted MSAs may experience a price
change during the process and erode some predictability.  PMSI encourages CMS to adopt a practice that uses pricing based on the date submitted.

  • In Section 9.4.6.2 of the Reference Guide, it states the WCRC takes all evidence of drug weaning into account, although in most circumstances the WCRC cannot assume that the weaning process will be successful. Usually, the latest weaned dosage is extrapolated for the life expectancy, but again, they assess all records when making these types of determinations.

PMSI Comments: While this clarification is helpful and confirms that weaning will be taken into consideration by CMS if already underway, it does not allow for an accurate WCMSA when the physician plans to continue the weaning process.   

If you have any questions on the new Reference Guide, or if PMSI can be of further assistance, please contact us at askthexperts@pmsisettlement.com.

Government Shutdown and Impact to MSP and CMS (Part 2)

On September 30th, we issued a blog about the government shutdown and predictions as to how it would affect the various operations at CMS and other entities charged with MSP operations. Please click here to read our prior blog.

As our subscribers are probably aware, it has now been over a week since the government shutdown commenced and it is unclear as to when it will cease.  PMSI would like to provide the following update to its subscribers:

CMS Approval Letters and the WCRC:

Over the past week, PMSI has still been receiving MSA approval letters from CMS, although fewer than usual. PMSI has learned from its contacts at the WCRC that the CMS Regional Offices are operating with a “skeleton crew,” and therefore some CMS approval letters are still being issued. However, approval letters are not being issued at normal volume and therefore the industry can expect fewer approval letters than usual until the shutdown ceases.

If a call is placed to any of the CMS Regional Offices, your call will be responded to with the following message: “Due to the absence of either a fiscal year 2014 appropriation, or a continuing resolution for the Department of Health and Human Services, our offices are in furlough and we are not able to respond to your message.”

Conditional Payment Processes and the MSPRC:

Over the past week, the MSPRC appears to be operating normally as predicted and the conditional payment process appears to not be affected.

As usual, PMSI will continue to keep our subscribers updated on the government shutdown and any affect it may have on the MSP processes.

Government Shutdown and Impact to MSP and CMS

As of 2:30 P.M. EST this afternoon, the U.S. Senate has rejected the latest House “Continuing Resolution” needed to fund federal government operations beyond the end of the fiscal year, set to end tonight, September 30th at midnight.  Therefore, it appears very likely that the Government will shut down, at least for several days, starting tomorrow, October 1st.  

Most relevant to CMS and MSP operations, PMSI has learned through the MARC Coalition that although the shutdown will result in many CMS staff being furloughed, it will NOT result in termination of operations at the MSPRC. 

More specifically, CMS has indicated that all Coordination of Benefits/MSP contractors will be operating under normal hours, and that CMS does not expect any announcement to be posted.  It is presumed that the MSPRC and COBC are operating using FY13 funding. Thus, while the CMS staff may not be at work tomorrow, the contractors will continue normal operations.

PMSI will continue to follow the shutdown and will keep suscribers notified of any significant changes relevant to CMS and the MSP.