By Daniel Anders, Chief Compliance Officer, Tower MSA Partners
Let’s face it. When you realize that settlement of a workers’ compensation claim will require a Medicare Set-Aside (MSA) you may let out an audible groan or even a choice profanity. An MSA will no doubt add cost and time to settlement of a claim. This is why it is so important to partner with a Medicare Secondary Payer (MSP) compliance vendor that can effectively work with you to limit those costs and reduce the time involved with the MSA to the greatest extent possible while still ensuring you are compliant with Medicare requirements.
A partnership is a two-way street in which there are expectations for you as well as your MSP compliance vendor. Even a trusted, experienced and professional MSA vendor needs your involvement. Here are eight steps to obtaining faster, more accurate MSAs by strengthening your relationship with your MSA company. Next week, we’ll bring you four more.
Proper Transfer of Information and Documentation at Time of Referral
An MSA allocation is only as good as the information it is based upon. You, or perhaps the defense attorney or even the claimant attorney, have the documentation your MSA vendor requires to write an accurate and defensible MSA report.
Key information/documentation required by MSA vendor to prepare MSA report:
- Complete referral form
- Claim payment history
- Two years of medical records for each settling body part or condition
- Claim prescription drug history
- Accepted and denied body parts
- Multiple dates of injury settling
- Court orders and rulings
When you transfer all the relevant information and documentation to your MSA company at the time of referral you increase the accuracy of the allocation and avoid the need to revise the report with additional documentation after it has been written. While your MSA company may be able to access your claim system to pull relevant records, keep in mind that the claims system may not contain all the required documentation. Sometimes there are older records, legal determinations or depositions in a different system or with your defense attorney.
Read the MSA Report and Act on the Recommendations
When you receive the MSA report, it’s tempting to just zero in on the projected dollar amount for settlement purposes. However, failing to review the MSA report and the basis for the allocated amount can be a costly mistake. An MSA partner that wants to help you resolve the case and will generally provide recommendations on how to lower the projected MSA allocation or overcome hurdles to obtaining its approval from the Centers for Medicare and Medicaid Services (CMS). These recommendations may be to clarify ongoing medication use, address open-ended treatment, or implement an action plan to reduce high opioid or other medication use. Often the vendor has services that can address these problems. You pay for these recommendations and they can reduce MSA costs and/or the time it takes to obtain CMS approval, so review and act on them.
Besides, you know your claim the best. With an experienced MSA partner there should be limited errors and oversights, but they can occur. An oversight can result from some medical records or legal documents not being provided or it may be a misinterpretation of the available records. Again, you paid for the report. Review it and the spreadsheet of allocated medical care and question anything that does not appear appropriate based upon your understanding of the case.
Prepare for Claim Intervention Pre- or Post-MSA Report Completion
While in a perfect world an MSA report would be completed and submitted to CMS with no additional work required by you or your vendor, the reality is quite different. In the course of preparing an MSA your vendor may find that medical reports and prescription drug history are missing or that there are open-ended medical treatment or medication recommendations, contradictory or inconsistent physician statements, or costly medication use. These issues will usually either drive up the MSA allocation amount or result in a delay in CMS approval of the MSA as CMS requires the MSA submitter to obtain updated and accurate records.
Your MSA vendor should identify these issues and provide an intervention plan to address them prior to the MSA report completion or, if the report has been completed, prior to its submission to CMS. It is incumbent upon you to authorize your vendor to move forward with its plan and involve the defense attorney and claimant attorney, if necessary, to help resolve the identified issues.
Consult with MSA Vendor’s Compliance Team to Limit MSA Exposure
While an MSA mainly deals with clinical issues, your MSA vendor should have one or more attorneys on staff to address questions concerning whether an MSA is necessary and the effect of state workers’ compensation statutes or regulations and case-specific court-rulings on the preparation and submission of the MSA. These attorneys, which typically have years of experience in MSP compliance, can consult with you on what tactics to limit the MSA amount will and will not work or recommend actions that may lower the MSA allocation, in some cases to a $0 MSA allocation. However, your vendor’s compliance team cannot assist you if you do not provide the information on accepted and denied body parts and conditions and provide relevant court orders, rulings or depositions for review.
In summary, gather all the information needed for the MSA and provide it to your vendor upfront. This will help your vendor identify all the barriers to settlement and recommend appropriate interventions. Keep the process moving by reviewing the report as quickly as possible and authorizing interventions. And, remember to investigate legal remedies with your vendor’s compliance team to make sure that interventions comply with the jurisdictions statutes and that you take advantage of any legal options. Next week, we’ll look at four more ways to optimize your relationship with your MSA vendor.
Create Escalation Process to Avoid Unintended Consequences
We all have a lot on our plates, especially claims professionals. From time to time the direct claims handler does not respond to a recommendation provided by the MSA vendor or wants to move forward without addressing the recommendation. If your MSA partner strongly believes such action or non-action will be detrimental to the MSA or the claim, then it is good to have an escalation process in place so the recommendation can be presented to a supervisor or manager for review. Similarly, your MSA vendor should provide you a key contact so you can escalate matters if you are concerned with the information or responses you have received from the partner’s front-line personnel. These mutual escalation processes allow both you and your MSA partner to have a complete picture of the issues at hand and effectively address them at the most critical time.
Rely Upon MSA Vendor to Act as Settlement Initiative Gatekeeper
At some point you will likely be involved in a settlement initiative. Settlement initiatives typically involve legacy claims or that have been open for some time and continue to draw down medical and/or indemnity. Successful settlement initiatives involve multiple partners, such as defense attorney, structured settlement broker, a professional administrator, and a medical case manager. The right MSA vendor can act as your gatekeeper, coordinating MSA development, clinical intervention and CMS submission, and bringing a structured settlement broker and professional administrator into the process. This frees up the claims handler and defense attorney to concentrate on settlement negotiations and finalization.
Involve MSA Vendor in Settlement Negotiation and Finalization
Funding an MSA as part of settlement involves significant decisions as to whether the MSA will be distributed as a lump sum or annuity and whether it will be self or professionally administered. Your MSA vendor can provide the pros and cons of each option and recommend structured settlement brokers and professional administrators that are qualified and experienced in funding and administering an MSA as part of a workers’ compensation settlement. Additionally, your vendor’s MSP compliance team can work hand in hand with you or your defense attorney to draft settlement terms consistent with CMS guidance. This includes proper inclusion of the MSA in settlement and defining Medicare conditional payment resolution. Importantly, CMS requires the MSA company to submit final, court-approved, settlement documents to make the approved MSA effective. This final step in your partnership with your MSA vendor is sometimes forgotten but is vital to avoid problems with CMS for you and the claimant in the future.
Monitor Key Performance Metrics with MSA Vendor
Your MSA vendor can provide you with performance metrics that allow you to regularly measure the quality of your partnership. Some typical performance metrics are:
- Number of MSA referrals
- Turnaround time to write MSA report
- CMS MSA approval rate
- Percentage of MSAs with prescription medications
- Cost savings because of interventions
- Percentage of MSAs with Development Letters from CMS
Developing your own key performance indicators with your MSA vendor not only provides a measure of success, but it also helps identify areas for improvement in your own workers’ compensation program as well as your vendor’s processes.
These steps roll up into one simple lesson: stay actively engaged with your MSA vendor throughout the development and submission of the MSA to CMS, and then all the way to final settlement. As these lessons reveal, the right MSA vendor brings enormous value to resolution of your claim, but this often remains untapped value. Using these steps, you can effectively work with your MSA vendor which will undoubtedly lead to faster, accurate MSAs, lower MSA allocations and more settlements.
About Daniel Anders
Daniel M. Anders, Esq., MSCC is the Chief Compliance Officer for Tower MSA Partners. A certified Medicare Set-Aside Consultant and attorney, he oversees the Medicare Secondary Payer (MSP) compliance program. Mr. Anders is responsible for ensuring the integrity and quality of the MSA program and other services and products and he provides education and consultation to Tower MSA clients on all aspects of MSP compliance.
Mr. Anders is the former Senior Vice-President of MSP Compliance for ExamWorks Clinical Solutions and he has extensive litigation experience from his prior position with the Chicago law firm of Wiedner & McAuliffe. He holds a Juris Doctor from Chicago-Kent College of Law and a Bachelor of Arts degree from Loyola University Chicago. Contact Mr. Anders at 847.946.2880 or firstname.lastname@example.org Fax: 888.331.4942 www.towermsa.com
About Tower MSA Partners
Headquartered in Delray Beach, Fla., Tower MSA Partners’ services include pre-MSA Triage, MSAs, physician peer reviews, CMS submissions, MSA administration, medical cost projections, life care plans, conditional payments, and Section 111 reporting. Tower leverages leading edge technology to proactively stage claims and works collaboratively with clients to identify issues and intervene to modify outcomes. Tower remains involved in the claims, through final resolution, MSA and/or other settlement. This model enables Tower’s clients to provide better care to injured workers, reduce claim and MSA costs, and obtain CMS acceptance of the MSA. For more information, visit www.towermsa.com and www.mspcomplianceblog.com.