CMS is More Amenable to Stakeholder Concerns of MSP Issues, Expert Says

Nancy Grover

Delray Beach, FL (WorkersCompenation.com) – The Medicare secondary payer process has become much more complex in recent years. The good news is, the federal agency charged with setting and enforcing the policies has become much more open to listening to stakeholders and making changes.

“There was a time when it was very difficult for us as an organization or individuals to reach out to someone at [the Centers for Medicare and Medicaid Services] to raise a problem we believe should be addressed. If you did get a meeting, you’d get maybe one meeting, and another [meeting] 3 years later,” said Daniel Anders, chief Compliance officer for Tower MSA Partners, and newly elected president of the National Medicare Seondary Payer Network. “There was no give and take with the folks making the policy, implementing the processes affecting all of us who have to deal with CMS.”

Things changed about three years ago. The CMS Division of MSP Program Operations, under the leadership of Steve Forrey, began what is now regular communications and meetings with those involved in processing Medicare Secondary Payer issues.

“There’s a value of CMS understanding how their policies are impacting all of us that work with employers and insurers or on behalf of medical beneficiaries,” Anders said. “Ultimately their purpose is to protect the Medicare Trust Fund. They are open to looking at [ways] that can make that process better.”

That’s welcome news to those in the workers’ compensation system involved in dealing with CMS, especially since the process has become much more complicated in the past 15 years. At the time, CMS’ main function was reviewing proposed Medicare Set-Asides for injured workers who would be settling their claims.

“There was no mandatory reporting, where carriers have to report Medicare eligible claimants; while Medicare conditional payment rules were in place, we didn’t see much enforcement at that point,” Anders said. “But over time, CMS added on to that and increased its efforts at collecting conditional payments – past payments Medicare has paid. In 2010 we had section 111 provisions passed into law requiring mandatory reporting. Then we had MSA professional administration companies managing MSA accounts. So over time it became much more than writing MSAS and submitting them to CMS, which is something that’s still very important.”

The changes implemented by CMS has led to a rebranding of the national association dedicated to addressing issues of the Medicare Secondary Payer Statute and its impact on workers’ compensation and liability settlements. The former National Alliance of Medicare Set-Aside Professionals, NAMSAP, has been renamed the NMSPN.

“A couple years ago … the board started saying our mission needs to go beyond just MSAs,” Anders said. “Last year we went into the official change … to really reflect who we are at this point, which is certainly MSAs being a foundation of what we do but beyond that working with conditional payments and section 111 reporting. And reflecting our membership, which is not just folks writing MSAs but defense attorneys, insurers, employers — people at multiple levels in the MSP process.”

Maintaining and expanding the ongoing communication with CMS is one of Anders’ goals for 2021. He says there have been several examples of changes made by CMS to address stakeholders’ concerns.

“A couple of years ago, we started seeing CMS adding urine drug screens for claimants on opioids, and those add up in applications. They can add a good amount of money to the MSA,” Anders said. “We brought up that concern, that these were being added without any evidence in treatment records that they were actually being done … We presented that concern to them and they did rework their review policy such that urine drug screens are only included if there is a past history of them being allocated or the treating physician is recommending them. That translates to tens of thousands of dollars in MSAs.”

CMS has also released the list of major medical centers it uses to calculate surgical pricing, something the agency had not done until last year at the urging of stakeholders.

One issue Anders said he would like to see addressed is the cost savings incurred. So far, CMS does not issue comprehensive reporting about the financial effectiveness of MSAs.

“If you think about it, anyone who submits an MSA that gets approved by CMS, they fund it, make it effective, and they are required to send in annual reporting documents to show how much was spent from the MSA,” Anders said. “There’s never been anything from CMS; how many [MSAs] are being submitted on an annual basis, or how much is this effectively saving CMS? Because that’s the reality — what is being submitted to CMS on these forms, what’s being paid out? That’s the money that’s being saved that would otherwise be paid by the Medicare Trust Fund.”

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