Join Jennifer Shymanski, JD, CMSP, and Rasa Fumagalli JD, MSCC for a webinar on January 31st, 2018 from 1:00 to 1:30 pm CST to learn about the NuShield Certified Compromise MSA. Register here. The Certified Compromise MSA is an allocation that is apportioned from the net settlement. By comparing the various damage elements in a claim, the Certified Compromise MSA avoids a cost shift of injury alleged medical expenses to Medicare while taking into account the disputed nature of the settlement.
Jennifer Shymanksi, JD, CMSP, NuQuest’s Director of Implementation and Strategy, holds a law degree from Northern Illinois University College of Law and a Bachelor of Arts in Political Science from the University of Wisconsin – Stevens Point. She is admitted to practice law in the State of Wisconsin. Prior to joining NuQuest in March of 2010, she spent over ten years at Nationwide Insurance working with both workers compensation and personal liability claims teams.
As Director of Implementation and Strategy, Jennifer utilizes her extensive experience in claim handling and negotiation to work with clients in choosing the correct products and services to address their particular Medicare Secondary Payer Compliance issues. Jennifer’s focus is on assisting clients in designing their MSP compliance programs including training and implementation of those programs. She frequently attends file conferences and provides continuing education presentations.
Rasa Fumagalli, JD, MSCC, NuQuest’s VP of MSP Compliance and Customer Relations, holds a law degree from IIT’s Chicago Kent College of Law with an undergraduate business degree from the University of Illinois. Prior to joining NuQuest, she spent over twenty years specializing in workers’ compensation defense work in the Chicago area. Rasa utilizes her extensive experience in handling workers’ compensation cases when consulting with clients about Medicare Secondary Payer (MSP) compliance issues. She is admitted to practice law in the State of Illinois and was recently elected to the Board of Directors for the National Alliance for Medicare Set-Aside Professionals (NAMSAP). She is an active member of the Evidence-Based Medicine, Communications, and Liability Committees.
On January 5, 2018, CMS announced that it will hold two webinars discussing the new CRC contractor. On January 17, 2018, CMS will introduce the CRC contractor to Group Health Plan (GHP) stakeholders. On January 18, 2018, CMS will introduce the CRC contractor to the Non Group Health Plan (NGHP) stakeholders. A link to the January 17, 2018, group health plan announcement can be found here. The January 18, 2018 Non Group Health Plan announcement may be found here.
As a follow up to the transition of the Commercial Recovery Center’s (CRC) operations to Performant Financial Corporation (Performant), NuQuest was recently advised that Performant’s operational start date has been delayed. Performant begins its operation of CRC 2/9/2018.
CGI Federal will continue to handle CRC’s operations until 2/8/2018. At that time, pending appeals will be transferred to Performant for handling. If there is a pending appeal prior to the transition, CRC’s 60-day response target timeframe still applies to the pending appeal. This means that if an appeal of initial determination is filed on 1/5/2018 and CRC did not provide a response prior to the transition, Performant still has a target response date of 3/6/2018.
As a part of the transition, NuQuest was advised that CRC will have new address, telephone, and fax numbers. Once this new contact information is available, we will provide an update. An additional summary of this transition can be found here: http://mynuquest.com/conditional-payments/new-commercial-repayment-center-crc-contractor-192018/.
Our NuQuest team is always ready to seek a correction of an erroneous CMS determination. A recent re-review victory is highlighted below.
Claimant filed two separate workers’ compensation claims against one employer that had two different workers’ compensation carriers for two different accident dates. Claimant sought treatment for both claims with the same treating physician. In an effort to separate the liability of the carriers and claimant for each claim, the treating physician noted in his records which medications belong to each claim. NuQuest submitted a WCMSA proposal that excluded a prescription projection based upon the medical records stating that certain prescriptions were being prescribed in relation to the separate claim and additionally, that an IMR determined that the medications were unreasonable and unnecessary. Medicare’s determination included a prescription allocation for the medication prescribed for the separate claim stating that because payments were made for the medications and there were no alternative treatment recommendation, the IMR was insufficient to remove the medications.
A re-review was submitted with the court award for the separate claim and an additional letter from the doctor that predated the WCMSA submission, again identifying which medications belong to each claim. After review, Medicare agreed that a prescription allocation was unnecessary because the medications belonged to a separate claim.
As indicated by this re-review, letters from prescribers will be sufficient to exclude medications from an MSA, in certain circumstances. Parties to a settlement should consider if the treating physician or prescriber will provide a written statement identifying exactly what is related to a claim. This is good practice regardless of whether a proposed MSA is voluntarily submitted to CMS for review.
The California Workers’ Compensation Institute (CWCI) is a private organization of insurers and self-insured employers that use claims data to identify problem areas in the workers’ compensation system and seek solutions for them within the industry. The CWCI recently put out a report entitled “Opioids in Workers’ Compensation Medicare Set-Asides” (WCMSA) based on the results of a study that examined the pharmaceutical component of approximately 8,000 CMS-approved WCMSA arrangements. The arrangements had been approved by CMS between January of 2015 and December of 2016. NuQuest was one of the four national WCMSA vendors that provided data for this study.
Objectives of the Study
The study objectives included the identification of categories of the most frequent medications in the WCMSA study sample. Data from the CMS reviewed WCMSA arrangements was compared with data from a control group of 71,771 closed permanent disability claims from accident years 2006 through 2009 involving similar injuries without an associated WCMSA. Given the current opioid abuse epidemic, and CMS’ pharmacy projection model, it comes as no surprise that opioids were the most common drug group found in the WCMSAs that were examined. In addition, it is significant to note that the cumulative morphine milligram equivalents (MMEs) in the CMS reviewed WCMSAs were 45 times the amounts used in the control group. Furthermore, pharmaceuticals accounted for only 17% of total medical dollars paid in the control group, while the pharmaceuticals in the CMS-approved WCMSA arrangements accounted for 47% of the total projected medical allocation.
The study also sought to determine whether CMS’ projection model for opioids aligned with evidence-based medicine guidelines for opioids. The American Pain Society, the American College of Physicians, and the American Academy of Neurology all recommend against the use of opioids for chronic pain since there is no evidence of improved function with the use of opioids for chronic low back pain (which accounted for 39% of the CMS-approved WCMSAs). Medical literature also indicates that individuals who are using benzodiazepines along with opioids are at an even greater risk of death. The CMS-approved WCMSAs, however, showed that 1 in 7 WCMSAs with opioids also included prescription allocations for benzodiazepines, while approximately 5 % of the WCMSAs with opioids had benzodiazepines and muscle relaxants. Although the authors of the study acknowledged that CMS reviewed WCMSAs estimate future injury-related care based on current treatment regimens, they cautioned that CMS’ presumption of the long-term use of opioids at these high levels places claimants at an increased risk of harm. The authors also called for modifications to the WCMSA projection methodology that would treat opioids differently than other medications as a matter of public policy.
So where do we go from here?
As one of the four national vendors that provided data for the CWCI report, NuQuest has been closely monitoring CMS’ overfunding of determinations over the years. The need to address this resulted in our development of the non-submitted NuShield certified MSA. The certified MSA projects opioids and other care, in accordance with evidence-based medicine guidelines and the claimant’s current treatment regimen. The projections are both medically and legally defensible. In addition to our hold harmless and indemnification agreement that accompanies the NuShield certified MSA, our assistance in the administration of the certified MSA funds prevents premature exhaustion of the funds.
The use of the NuShield certified MSA in California cases and nationwide has resulted in significant pharmaceutical and medical savings. The table below illustrates the difference between the use of our evidence-based medicine pharmaceutical approach in California when compared with the use of CMS’ projection methodology for the same pharmaceuticals.
||NuShield RX using EBM
||CMS RX methodology
||CRPS, pain LE, depression
||Status post fracture repair wrist, depression, insomnia, carpal tunnel repair
||Postlaminectomy syndrome, lumbar, cervicalgia, plantar fascitis
The CWCI study’s comparison of pharmacy expenditures in its control group with the CMS pharmaceutical projections for a similar class underscores the disconnect between actual usage and CMS’ projection methodology. More information regarding the NuShield certified MSA program is available upon request by contacting Kip Daniels or Barbara Fairchild at firstname.lastname@example.org or email@example.com.