A New Decade and Changes to be on the Lookout for as a Claims Professional


Here we are at a new decade, and what could be more exciting than looking ahead to what is to come in the world of compliance and workers’ compensation claims management?  Below are some of the interesting items I intend to be on the lookout for in the coming year, as well as some tips to be best prepared for the changes likely to hit the workers’ compensation space (along with a couple of bold predictions):

Medicare Secondary Payer Compliance Will Continue to Be Placed at The Forefront. 

We will likely see this take shape in two ways:                                                                                            

1)       We are still awaiting the possibility of the release of two rules, which have been delayed several times. These rules will impact the Medicare Secondary Payer space and many workers’ compensation claims nationwide. The potential rules address: 

        o   MMSEA Section 111 Civil Money Penalties, which requires reporting of all claims involving Medicare beneficiaries to the Center for Medicare & Medicaid Services (CMS); and 

        o   Satisfying future Medicare Secondary Payer (MSP) obligations, which may address Liability Medicare Set-Asides and perhaps a voluntary review program for LMSAs.  This rule may also address the current trend in the industry of non-submission of Workers’ Compensation Medicare Set-Asides. 

With the government grasping at the low-hanging fruit of Civil Money Penalties, it is quite possible that the rule with respect to LMSAs will be delayed even further, but something to continue to watch and be prepared for. With respect to the Section 111 rule it will be interesting to see the nature of the government’s reach in imposing fines for failing to report a claim or providing inaccurate data. Claims professionals would benefit from reviewing and conducting an audit prior to any actual rule release on the methods for reporting, collecting data, and providing corrected data on claims involving Medicare beneficiaries. 

2)      We will see more law firms reprimanded and sanctioned for failing to address Medicare conditional payments. Conditional payments occur when Medicare makes a payment for medical care on behalf of a beneficiary, when another entity is responsible for the payment. Since 2018, we have seen five enforcement actions, by the U.S Attorney’s Office against law firms for failing to have appropriate compliance protocols in place.  

Claims professionals would best be served to review the recommendations in these enforcement actions of establishing a compliance program that fully addresses conditional payments.  

Medicare Advantage Plans Will Continue to Rapidly Expand and Will Present Benefits and Challenges 

Medicare Advantage Plans (MAPs) are alternatives to traditional Medicare and are rapidly growing in popularity with Medicare beneficiaries.  According to a recent study by the Kaiser Family Foundation [1], more than 22 million Medicare beneficiaries (34%) are enrolled in MAPs in 2019. While, these plans typically offer more perks than traditional Medicare, there are some seeming challenges for those in the claims space, particularly in identifying which plan an injured worker may be enrolled in. MAP enrollment can be changed not only yearly, but also during a trial period, which means in any given year a beneficiary may be enrolled in more than one plan. Combine this access to plans, with the ability for a beneficiary to switch plans year to year, and the challenge to identify enrollment becomes apparent. Moreover, similar to traditional Medicare, a MAP, can also make conditional payments on behalf of the Medicare beneficiary. MAPs operate very differently than traditional Medicare and do not go through the same channels to obtain reimbursement for payments made. In fact, in recent years, there has been a flurry of MAP litigation. This is because federal regulations [2] allow recovery from parties that receive primary payments, meaning that recovery is possible from a beneficiary, provider, supplier, physician, attorney, State agency, or a private insurer that has received a payment.  In addition, one of the driving forces behind the flurry of MAP litigation is the right to collect double damages on these types of actions.  With the MAP space becoming more lucrative and competitive, MAP enrollment and MAP litigation will only increase.  

Claims professionals would best be prepared for these litigious actions by having protocols to identify MAP enrollment early on in a claim.   

Prescription Drugs Costs Will Continue to Decrease as States Continue to Adopt Workers’ Compensation Drug Formularies. 

Much of the costs in workers’ compensation claims arises from prescription drug costs. However, there been an interesting shift in states with adopted workers’ compensation drug formularies, particularly as we have seen heightened efforts to curb the opioid crisis. The goal of a drug formulary is to ensure that the most appropriate prescription medications are utilized. As we continue to see states implement drug formularies, we will continue to see a decrease in prescription drug costs, which will ultimately reduce costs of claims. However, implementation of drug formularies, and questions that may abound from injured workers may present some significant challenges.  

Claims professionals would benefit in understanding the benefits and some of the anticipated challenges of current drug formularies, as more states move to implement formulary rules. 

Complementary and Alternative Healthcare is Coming to a Claim Near You. 

The Center for Medicare & Medicaid Services recently issued a decision to cover acupuncture for Medicare patients with chronic low back pain (cLBP) to some extent. This is only the beginning of the expansion of coverage of alternative treatments. It is likely within the next two years we will begin to see even more discussion and focus on the effectiveness of various treatment modalities, and coverage of acupuncture will very likely extend to conditions beyond cLBP, and perhaps even more generally to acute pain. 

Claims professionals would benefit from staying on top of coverage changes and understanding the general shift to identify effective alternative treatment modalities. 

Telehealth Medicine Will Continue to Expand. 

One of the challenges associated with workers’ compensation injuries is often having injured workers travel for initial care, as well post-surgical care. This next year will likely bring telehealth more into view, from more virtual physician visits, to telehealth/telerehab physical therapy.  2020 will be a marked year of focusing on medical care access, and a large focus will be on ensuring that injured workers have access to necessary medical care. 

Claims professionals would be best prepared for understanding the available resources and providing injured workers with a means to access reasonable medical care. Such access will provide the injured worker with more options for health care accessibility, which will in turn result in a better outcome for the injured worker; but could also potentially result in faster claim resolution. 

Overall, the workers’ compensation industry is ever evolving and the best way to be prepared for the coming changes is to establish proactive proper protocols and claims management now to address the changing times.  As a Claims Professional, I am excitingly looking forward to the changes this industry will see.

[1] https://www.kff.org/medicare/issue-brief/medicare-advantage-2020-spotlight-first-look/

[2] See 42 CFR § 411.24.


By Jean S. Goldstein

Jean S. Goldstein is the Senior Legal Counsel for MEDVAL. She is a licensed attorney admitted to practice in the State of Maryland, with over fifteen years of diverse legal experience in Medicare Secondary Payer compliance, class action litigation, estate planning, elder law, social security disability, medical malpractice, and administrative proceedings. 

Jean is also a nationally recognized blogger and author on Medicare compliance and claims management. 

Prior to joining MEDVAL, Jean worked in the public sector, at the Maryland Office of the Attorney General



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