By Daniel M. Anders, Esq. Chief Compliance Officer, Tower MSA Partners
The first article in this series examined the metrics that give payers a more disciplined view of MSP program performance—turnaround time, development letter frequency, counter-higher, approval variance, and clinical outcome measures among them.
Measurement, however, is only the starting point.
Once an organization can see how its MSA program is performing, the more important question is what to do with that information. In most cases, the metrics that appear at the end of the process are determined by decisions made well before a submission reaches the Centers for Medicare & Medicaid Services (CMS).
High-performing MSA programs share a common characteristic: they treat preparation, not submission, as the point at which outcomes are decided.
Supporting a Fast Turnaround Time
On average, CMS MSA review and approval should take about 15 days. That is, of course, unless your submission receives a development letter. A high volume of development letters is one of the clearest signs that submissions are reaching CMS before they are ready. Each letter indicates information CMS needs but did not receive—an incomplete set of two years of medical records, a payment history that does not reconcile with the documented treatment, missing prescription history, or an unexplained discrepancy regarding compensability. Each development letter also adds time to the review.
Mitigation happens upstream, and your MSA vendor partner should be working with you to identify and remediate. This means confirming that medical records are current and complete, that the claim payment history aligns with the treatment described, that the prescription profile is accurate, and that any inconsistencies are resolved before the submission is sent. And don’t forget the important claim-signed Consent to Release. This is a required part of the submission, and the earlier it is obtained, the quicker the submission can move ahead.
The objective is to anticipate what CMS will ask and to answer those questions in advance. By working with your MSA partner to collect the necessary information, the CMS MSA review process itself becomes merely the final formality.
Treatment Records Determine the CMS-Approved MSA Amount
As noted above, a complete two years of medical records are required for CMS to complete its review. As CMS will not abide by IME or UR determinations, what is in these records will determine what is allocated in the MSA. Consequently, surgical recommendations, or even mentions, open-ended medication fills and simply the claimant abandoning treatment can result in a high MSA allocation. This is because CMS tends to assume the worst, that medications will continue perhaps with a PCP, the claimant will pursue the long-ago recommended surgery or there is injury-related treatment occurring outside of workers’ compensation.
This is where your MSA partner should step up and inform you of both high MSA exposure as well as how to mitigate such exposure. Common solutions are physician statements clarifying surgical and medications needs. Sometimes, this is paired with a personal prescription history confirming no ongoing injury-related medications. Physician letters confirming the last dates of treatment are also critical in informing CMS of the completion of treatment.
Keep in mind that CMS’s position is that an MSA should be submitted only when the injured worker reaches MMI. CMS assumes that the course of treatment at MMI predicts the future, so they lock in that treatment for a person’s life expectancy. This means that if the frequency of physician visits is four per year, that’s what it will be for life. And if Meloxicam is once per day, that’s what it will be for life as well.
The takeaway then is the MSA is only as good as the records it is based upon. Documentation quality supports an accurate MSA. Current records, a complete payment and prescription history, and clear notation of any discontinued medications or abandoned treatment plans give CMS the full picture and reduces the need for the agency to fill gaps with assumptions that may not be favorable to the allocation.
The Role of Medication Appropriateness
Both CMS and industry data show that medications represent a smaller portion of the MSA amount then they have in the past. This is in part due to reduced use of opioids, as well as less brand name medications used for pain control, which represents the bulk of medications in WC claims. Nonetheless, the appropriateness of medication use remains important to the MSA. allocation. The best practice is for the payer to address medication use even before an MSA is written. Clinical interventions; weaning unnecessary medications, addressing dangerous combinations, converting them to generic equivalents, or discontinuing therapies no longer supported by the diagnosis, can materially reduce an MSA allocation.
The critical factor is timing. Medication discontinuities, dosage or frequency changes, or medication switches must be documented in the treatment records and the prescription history. For example, say a medication that was being used regularly is switched to “as needed” use. CMS will want to see a few months of prescription history to ensure that the medication is indeed now being used on an as-needed basis. The rule is that changes must be reflected in the medical and pharmacy records at the time of submission, because CMS projects future medication based on what the records show.
Addressing a High CMS Counter-Higher
What happens if, despite everyone’s best efforts, CMS review results in a counter-higher? In other words, CMS requires a higher allocation than the amount submitted. First, did CMS make an error or misinterpret the records? CMS has a re-review process that allows the MSA submitter to request a change to the determination. With any counter-higher, your MSA partner should determine whether a re-review is indicated and, if so, request one immediately. CMS usually responds to such requests within 14 days.
If the re-review is unsuccessful or there is no basis for one, the payer can consider funding the MSA as approved or submitting an Amended Review MSA. An Amended Review MSA requires additional medical documentation to support a change of 10% or $10,000 (whichever is greater) to the CMS-approved MSA. Previously, a 12-month waiting period applied before an Amended Review MSA could be submitted to CMS, but that has been eliminated.
Using the Amended Review process depends on ensuring the clinical record accurately reflects the claimant’s current and expected care. If a medication has been discontinued or a recommended procedure is no longer planned (or has already occurred), the record must document it. The record must also be very clear in confirming that a treatment or medication allocated in the MSA is no longer necessary. Where treatment has genuinely changed after a determination, the amended review pathway provides the opportunity to align the allocation with the current course of treatment.
Questions to Ask Before Submission
The strongest position is established before the first submission, ensuring that the clinical record and the allocation align. Accordingly, before a case reaches CMS, high-performing programs should ask:
- Are the medical records current and complete?
- Does the claim payment history reconcile with the documented treatment?
- Is the prescription profile accurate, and are any discontinued medications clearly noted?
- Does the proposed allocation reflect the claimant’s actual and expected care?
- Have appropriate clinical interventions been completed and documented?
- Is the file ready not only to submit, but to settle?
The broader principle is consistent with the first article’s findings: the metrics that define MSA program performance are not produced at submission, they are determined by the preparation that precedes it. Organizations that invest in clinical alignment, documentation quality, and medication appropriateness before a case reaches CMS will see the difference reflected in fewer development letters, fewer counter-highers, faster turnaround, and more accurate allocations.
Preparation, in the end, is what determines the outcome.
About Dan Anders
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 to 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 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.
Before joining Tower in 2016, Dan served as Senior Vice President of MSP Compliance for ExamWorks Clinical Solutions. He previously gained extensive litigation experience working for the Chicago law firm of Wiedner & McAuliffe.
Dan is a member of the Illinois State Bar Association and MSPN, having served as its president in 2021. He lives in Southeast Wisconsin and can be reached at Daniel.Anders@TowerMSA.com
About Tower MSA Partners
Headquartered in Delray Beach, Florida, Tower MSA Partners’ services include pre-MSA Triage, clinical interventions, conditional payment resolutions, and MSA preparation, submission and oversight through acceptance and claim closure. Section 111 Mandatory Reporting, settlement consultation, second opinions on MSAs, medical cost projections and life care plans are among its offerings. Visit www.towermsa.com and https://towermsa.com/blog/.