MSA Policy Updates, Changes Likely in Store for 2022, Expert Predicts

Sarasota, FL (WorkersCompensation.com) – The average amount for a Medicare Set-Aside in 2021 was far less than what many in the workers’ compensation system might think. According to figures from Tower MSA Partners, a MSA compliance and services provider, the average was $56,000, with the median being less than half that amount.

“Folks tend to have this thought process that these can be huge dollar amounts; that’s why we track median amounts as well,” said Daniel Anders, chief Compliance Officer of Tower MSA Partners and president of the National Medicare Secondary Payer Network. “When you look at the median, the middle of the road, it’s $23,000. For a carrier or employer looking to settle a case, that’s pretty manageable to resolve a case with a MSA.

With the end of 2021, the MSA industry is setting its sights on what’s ahead for 2022. Along with some familiar themes new issues may emerge this year.

2021

Last July represented the 20^th anniversary of the Patel Memo, when the federal government issued the first formalized policy that stipulated regional government offices would review MSAs. “It’s amazing to see how it’s come together over the 20 years,” Anders said. “Beyond that, review time [from the Centers for Medicare and Medicaid Services (CMS)] continues to be good – usually it’s two to three weeks to get an approval for a MSA. That’s certainly nice for folks needing that approval.”

The MSP process has expanded and become more complex in those 20 years. For example, congressional passage of Section 111 obligated CMS to set up a mandatory reporting process. That coincided with CMS ramping up its efforts toward getting reimbursements for conditional payments.

One potentially surprising bit of news out of 2021 – at least for some, was the dollar amounts included in MSAs. Tower’s metrics showed that only abut one-third of approved MSAs included prescription medications.

“Sometimes there a thought that the bulk of these prescriptions are there, but that’s not the case – at least from our data,” Anders said. “We’ve been tracking opioids, only to see them in about 15 percent of the MSAs. We’ve seen year-over-year declines in opioids as well as prescription drugs in MSAs.”

Anders said that decline is good news for payer, as there is less cost, as well as injured workers who are getting off unnecessary medications.

“The biggest thing in 2021 was the implementation of the PAID Act,” Anders said. “Credit to CMS for turning this around in one year.”

Officially titled the Provide Accurate Information Directly Act, the law passed in December 2020 requires CMS to provide more information about Medicare beneficiaries to employers/payers. The information will help identify whether an injured worker to a workers’ compensation settlement is enrolled in Medicare, Medicare Advantage Plan (Part C) or the Medicare Prescriptions Drug Benefit Plan (Part D); or if they’ve received benefits under these plans during the preceding three years. The goal is to make it easier to determine Medicare’s potential conditional payment interests in workers’ compensation settlements.

“Responsible Reporting Entities – employers, carriers – now have the ability to see enrollment information as the past three years of Part C and Part D,” Anders said. “For this year that means, I think payers are increasingly utilizing that data to contact – especially Medicare Advantage Plans – to determine if there is any claim for reimbursement. I think we’ll see much more of that in 2022.”

2022

Since releasing its implementation process for the PAID Act last month, CMS now seems posed to focus more on MSA policy updates and changes, Anders speculated. The agency kicked off the new year with an update to its MSA Reference Guide regarding MSAs that are not submitted for pre-approval by CMS. While CMS’ approval is not required by law, the notice said the agency views non-submit/evidence based MSAs “as a potential attempt to shift financial burden” to Medicare.

“Because of this update to the Reference Guide, we’re advising our clients if they do non-submits to reassess that in light of this recent policy; are the risks involved in doing that manageable for you,” Anders said. “Along those lines, if you continue with non-submits, making sure your I’s are dotted, your T’s crossed when it comes to that that report, and that there is a sound medical basis as to why they were allocated as they were.”

There are a couple of other potential issues for MSAs on the radar of MSA experts. One, for example, is the review threshold that can trigger CMS approvals.

“For Medicare beneficiaries it’s been $25,000 for years,” Anders said. “I date back to a time when it was actually $10,000. We’ll see if that gets changed.”

There’s also the possibility of CMS eliminating MSA reviews for zero-dollar submissions, which are used when the claim is denied or controverted, or the injured worker has completed treatment for the specific injury. “That’s something a lot of payers utilize, is getting these zero-dollar MSAs,” Anders said. “The thought there is we’ll watch to see if there is any change on those reviews.”

Finally, will 2022 be the year a MSA review policy is established for liability cases? “My thought is this may be the biggest chance in years for this to actually be proposed,” Anders said. “I don’t think anything will be finalized but I can see where they get to issuing a proposal for comment. With the PAID Act completed, CMS can really focus on MSAs more.” 

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