New CMS Mandatory MSA Reporting Webinar and your Reporting Playbook

We’ve seen some strange things with mandatory MSA reporting over the last few months, and like any team facing a sudden changes in the rulebook, we were hopeful that CMS would quickly realize the impact of these changes. Instead, confusion has grown among setting parties.  

In response, CMS has announced a webinar to take place on Wednesday, October 1^st at 2 PM ET. CMS is urging anyone involved in the workers’ compensation settlement process to attend –attorneys, adjusters, and Medicare beneficiaries alike – and is encouraging questions in advance.

But kickoff is still two weeks away, and the field is already in play. Settling parties need answers now. So, as we turn from summer to fall, and look ahead to October in decent shape, it’s time to update our settlement gameplan to avoid being left on the sidelines.

What’s Happening

CMS now mandates that companies report Medicare Set-Aside (MSA) amounts on all workers’ compensation total payment obligations (TPOCs) – regardless of the total settlement amount. Per CMS’ NGHP Section 111 User Guide, five data elements are required:

• MSA amount
• MSA term (if the MSA amount is greater than $0)
• Lump sum / structured settlement indicator
• Seed amount (if the MSA is structured)
• Annual payment (if the MSA is structured)

Optional fields include the professional administrator EIN and the CMS submission case control number (CCN). While CMS describes these fields as “optional,” experience shows that CMS may still expect them. This leads one to ask, well if it’s optional does that mean that I have to report it anyway? Based on sixteen years of Section 111 reporting the short answer is some version of: No, optional has always meant exactly that, that you do not have to report the data, but you can do so if you like.

The real challenge? CMS is folding the reported MSA data into its claims systems, as opposed to simply cataloguing the MSA data, and those edits are now disrupting the settlement process. CMS and its contractors placed unpublished and undisclosed edits on all seven new data elements and applied those edits to MSAs that had been submitted for prior approval to the Workers Compensation Review Contractor (WCRC). CMS’ decision to apply those edits has created challenges where TPOC data was reported prior to the WCRC completing its review. The following are confirmed consequences of these edits based upon ECS’ experience or CMS’ own comments at a recent industry conference:

1. CMS is marking files as complete and discontinuing review of the MSA on the basis of reported TPOC information as soon as TPOC is reported on a workers compensation claim.
   
   
2. CMS is not proactively notifying parties of its decisions to discontinue review.
   
   
3. CMS is converting professional administration to self-administration when RREs elect to not report the optional professional administration EIN.
   
   
4. CMS is overriding the approved MSA amount and replacing it with the TPOC value of the MSA.
   
   
5. At present, CMS has no means of directly communicating any of this information to submitters, beneficiaries, or RREs.
   
   
6. CMS is applying a hard error on the optional EIN and case control number fields, as opposed to a soft error. This can result in delayed TPOC reporting.
   
   
7. CMS will not allow updates to WCMSA values because – despite the fact that they are aggressively editing the fields – they are not important enough to warrant an update.

How does this happen? How could the reported TPOC data lead to CMS suspending review of a Medicare Set Aside? Is it only mistakenly reported TPOCs that are leading to this issue?

Well, a fun fact is that Medicare’s policy actually allows companies to settle claims before CMS completes its review of an MSA. That’s right, the WCMSA Reference Guide allows for post-settlement review of MSAs^[1]. And until mandatory MSA reporting, there was no real issue with these TPOC reports. But now that that TPOC reporting could inadvertently suspend MSA review, companies need to be very careful about not only the timing of the reporting but also the accuracy of the information that was reported.

This is unfortunate in that, CMS never formally announced it in the NGHP User Guide and these edits go against established agency policy in the WCMSA Reference Guide. Simply put, we are providing you with this information because, thus far, CMS has failed to communicate it in writing.

Consequently, these edits create real challenges in cases where MSA approval is requested. What’s the game plan so you and your company can avoid getting stuck in CMS limbo? Here’s the playbook:

1. Time TPOC reporting carefully. If you are submitting your case for review and approval, report TPOC only after the claim is fully resolved and the MSA has been funded. You have up to one year to report the claim data. We do not advise that you wait that long to report a claim, but in fact a worker’s comp settlement becomes a reportable TPOC only when the medical is officially released. If there are any contingencies regarding whether the medical is settled, you do may not have a TPOC. If you have questions about this, contact the ECS Compliance Team at mspcompliance@examworkscompliance.com.
   
   
2. Communicate. Ensure all parties are aware that the MSA data will be submitted via Section 111 and that CMS is editing these fields in unpredictable and counter-intuitive ways. Confirm that the claimant realizes that they will be sent correspondence from Medicare after the settlement and that they should review the information on the letter for accuracy. RREs are receiving copies of these letters, read them closely and notify the Compliance Team if there are any discrepancies.
   
   
3. Escalate when needed. If your CMS review is held up, the ECS compliance team will escalate the matter on your behalf and communicate with the judge, attorneys and beneficiary if needed.
   
   
4. Audit your Reporting. Coordinate with your Section 111 reporting agent (if applicable) to ensure that you have accurate values in your system and that proper logic is being employed. The ECS MIR Service Team offers a Section 111 Compliance Audit service that can be very helpful in making recommendations on changes.
   
   
5. Consider Non-Submit MSAs. If your internal claims policies allow it, consider an Evidence-Based Medicare Set Aside which avoids the headaches of CMS review. Ironically, CMS intended to track EBMSAs by obtaining mandatory MSA data. By editing these fields so aggressively and suspending review of claims pending MSA, CMS is likely inadvertently challenging the conventional wisdom about whether to submit MSAs to CMS for review and approval.

Final Whistle

While this issue is not occurring in every case, it’s happening often enough that settling parties must stay alert. ECS is closely monitoring this situation. We’ve said it before, and we will say it again – we take no pride in writing articles like this, but we cannot in good conscience wait for CMS to figure it out. We implore CMS to communicate more directly to the entire regulated community and immediately address these issues which are holding up settlements for Medicare beneficiaries. Until that time comes, the best defense is a solid reporting strategy - and a game plan you can trust.

Questions?  Contact ECS’ Medicare compliance experts at mspcompliance@examworkscompliance.com or email Marty Cassavoy at martin.cassavoy@examworkscompliance.com.

[1] The exact language where CMS indicates that the parties may have their claim reviewed after settlement is consummated can be found here: “The parties can proceed with the settlement of the medical expenses portion of a WC claim before CMS actually reviews the proposed WCMSA and determines an amount that adequately protects Medicare's interests. However, approval of the WCMSA is not effective until a copy of the final executed WC settlement agreement, which must include the funding information for the WCMSA amount, is received by CMS.” See Section 10.5 of the WCMSA Reference Guide. So, suspending review contradicts official agency policy.