By Daniel M. Anders, Esq. Chief Compliance Officer, Tower MSA Partners
Last week’s Leaders Speak shared some tricks of the trade for producing Medicare Set-Asides (MSAs) that are fair, reasonable, and optimized to eliminate or reduce unnecessary costs. Now we’ll turn to some tips for working with the Centers for Medicare and Medicaid Services (CMS) when settling cases with CMS-approved MSAs.
Consents, Rated Ages and Accepted and Denied Body Part Letters
While the MSA report, medical records, and prescription history represent the core support for the MSA allocation, important supplemental documents assure quick approval.
CMS will not review an MSA without a Consent to Release form signed by the claimant. While this seems like a given, submitters can get tripped up because the consent form requires both a full signature that matches the claimant’s legal name and an initialed section of the document. Additionally, e-signatures require certification documents to accompany the consent.
Unlike the consent form, a rated age is not required, but it’s a very good idea. MSAs are funded for an injured worker’s life expectancy, calculated using current Centers for Disease Control and Prevention Life Tables for Total Population. Naturally, comorbidities, injury severity and other health conditions affect longevity. A rated age is an adjusted age and the expected number of years of life remaining based on an individual’s medical impairments and their impact on life expectancy.
For example, a 54-year-old with diabetes, hypertension, and obesity who would normally have an unadjusted life expectancy of 25 years may receive a rated age of 60 with an adjusted life expectancy of 21 years. By reducing the time the MSA needs to cover, the rated age could mean that a $40,000 knee revision surgery would not be allocated in the MSA.
With a few exceptions, all MSAs should include a rated age, preferably prepared by a CMS-approved underwriter.
Also, it’s crucial that your MSA submission provider has a clear understanding of accepted and denied body parts and conditions. They should be able to properly present this information to CMS, which may include providing denial letters or having the adjuster sign a letter confirming the claim’s accepted and denied body parts. Ultimately, you want assurance that completely denied body parts and conditions will not be added to the MSA by CMS.
The CMS Development Letter
You’ve submitted an MSA and are waiting for CMS approval, which you should receive in approximately two to three weeks unless CMS issues a development letter. This request is for more information that CMS needs to review the proposed MSA properly. Frequently requested materials are:
- Updated medical records and/or prescription fill history
- Complete claim payment history of medical, indemnity and expenses
- A letter that clearly outlines all dates of injuries, all carriers, and all accepted and denied body parts
- Court rulings/settlement documents and documentation identified in medical records or settlement agreements
As the saying goes, the best defense is a good offense. It’s crucial to submit all the required documents with the original MSA submission. Nonetheless, even the best MSA submitters may encounter a development letter for unanticipated information requests.
The most common trigger for a development letter is an incomplete medical or prescription record. CMS wants all medical records from all the treating physicians for the last two years of treatment for work–related injury or illness – even if the workers’ compensation carrier did not pay for the treatment and even if the treatment was long ago.
It is important to remember that Independent Medical Evaluations, Qualified Medical Evaluations, and similar exams cannot be used in place of treatment records. Suppose treatment ended long ago, and the only recent reports come from examining doctors. In that case, a statement will typically need to be obtained from the most recent treating physician confirming the last treatment date and that no treatment has occurred since that date.
To avoid development letters when injury-related prescription medications were not paid on the claim, submit a printout from the claimant’s pharmacy documenting the prescriptions and fill history. If medications are no longer being filled, a statement from the treating physician may need to be obtained confirming discontinued medications.
If CMS deems the development letter response sufficient, it will issue its determination letter. CMS will approve the MSA as proposed or issue a counter-lower or a counter-higher.
Re-Review Appeal Process
If a counter-higher is received, your MSA provider should recommend whether a re-review to CMS is warranted. There could be a reason to dispute CMS’s decision. Sometimes CMS makes mistakes, such as:
- Fee schedule calculation errors
- Use of the wrong fee schedule
- Surgical calculation error
- Incorrect prescription drug pricing
- Full allocation for prescription instead of a PRN (as-needed) basis
- Excessive treatment frequency
- Unrelated treatment or medications
- Misinterpretation of medical records
If it is determined that a re-review request will be submitted, your MSA provider should prepare and submit the request to CMS with any supporting documentation. CMS typically responds to these within two to three weeks and more often than not with an MSA reduction.
When I first submitted MSAs to CMS 20 years ago, it was a process of trial and error until I understood the expectations CMS had for the MSA. Now CMS has a published reference guide to lay the ground rules for submission. However, the ins and outs of CMS submission are still not all in one guide, so there remains some “street learning.” This underscores the importance of relying on someone who can provide clear expectations regarding MSA exposure, mitigation steps, and options on how the MSA can successfully be incorporated into settlement.
About Daniel M. Anders, Esq., MSCC, CMSP
Daniel M. Anders, Esq., MSCC, CMSP is an attorney with over 20 years’ experience helping employers, insurers and other payers navigate the complexities of MSP compliance and settle workers’ compensation claims using MSAs.
As Tower’s Chief Compliance Officer, he oversees all aspects of regulatory compliance associated with the Medicare Secondary Payer (MSP) statutes and local, state, and federal laws. Dan consults with Tower’s clients on MSA cost containment and preparation and other MSP compliance issues. Additionally, he ensures the integrity and quality of Tower’s services and products, including its settlement focused MSA program.
A respected subject matter expert and thought leader, Dan regularly contributes articles to industry publications and to Tower’s MSP Compliance Blog. He has given numerous presentations at conferences, including the National Workers’ Comp, WCI, and the Medicare Secondary Payer Network (MSPN) annual conferences.
Dan earned his Juris Doctor degree from Chicago-Kent College of Law and his bachelor’s degree from Loyola University Chicago. He holds the Medicare Set-Aside Certified Consultant (MSCC) and Certified Medicare Secondary Payer (CMSP) credentials.
Dan is a member of MSPN, having served as its president in 2021. He lives in Southeast Wisconsin and can be reached at Daniel.Anders@TowerMSA.com
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About Tower MSA Partners
Headquartered in Delray Beach, Florida, Tower MSA Partners provides Medicare Secondary Payer services that focus on settlement optimization via pre-MSA intervention and cost mitigation. Services include Section 111 reporting, conditional payment resolution, pre-MSA Triage, clinical and legal interventions, physician follow-up, and second opinions on MSAs.
Tower leverages leading edge technology to proactively stage claims and collaborates 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 reduce claim and MSA costs and obtain CMS acceptance of the MSA. For more information, call 888-331-4941 or visit www.towermsa.com or https://towermsa.com/blog/.