Medicare Secondary Payer Best Practices PRIMA Podcast with Patrick Czuprynski

Hear the Full PRIMA Podcast Here

The Medicare Secondary Payer (MSP) Act has expanded the scope of workers’ compensation and liability claims beyond each individual state’s law concerning Medicare compliance. It also extends responsibility to plaintiffs’ attorneys, claimants of state, as well as self-insureds. As a result, it is vital to realize who is making payments for medical benefits on both accepted cases and disputed cases.

There are a variety of ways that your organization can consider the MSP act and still be in compliance with its new regulations. It is advised to begin with conducting a comprehensive review of each claim prior to choosing a course    of action.

When determining Medicare’s future interest in a settlement, an entity will generally not provide a future medical allocation while documenting that no future medical allocation was provided.

Options for considering Medicare’s future interest in a settlement include:

  • Commutation approach – takes into consideration what to reasonably expect to compensate for future medical expenses after the date of the settlement as a result of a work-related injury or disease.
  • Compromise approach – takes disputes on the case into consideration and is generally computed by an MSA (Medical Savings Account) that funds an accepted portion of the claim or an MSA that is based on a percentage of the settlement.
  • Seeking CMS (Centers for Medicare and Medicaid Services) approval – A voluntary process in which parties involved in the case are not required to undertake. This process typically leads to an overfunded MSA or an MSA that funds all possible treatments rather than probable or expected treatments.

Entities can address Medicare’s reimbursement requests on payments made by asking for documentation confirming that the request is related to the case and to ensure that reimbursement is indeed owed. At times, Medicare may ask for something that is not related to the claim itself. If it is a possibility that Medicare wrongfully collected on the case, the entity should investigate/appeal the request and search for methods to reduce the amount they are asking for or they have already taken from the case.

When reviewing these cases, it is imperative to maintain the mindset that the burden of proof should lie with Medicare.



At NuQuest, we strive to remain a strong leader in the MSA industry. One way we do so is to closely monitor the CMS approval process and to bring to their attention any improper judgments. The case study below is an example of how NuQuest takes the time to bring errors to light, not only for our clients but for the entire industry.

The claimant sustained a right shoulder injury on Oct. 1, 2016, and underwent an arthroscopic rotator cuff repair on Apr. 27, 2017. On Aug. 11, 2017, the treating orthopedist noted that she was doing well and that she requested additional physical therapy. Her medications at the time included Tramadol 50mg every eight hours, as needed.  As a result of the follow-up visit, additional physical therapy was prescribed, and she was advised to follow up, as needed. No additional medications were prescribed.

A Panel Qualified Medical Evaluation (PQME) was completed on Dec. 17, 2017, and it noted that the claimant had not returned to the treating orthopedist. She was placed at maximum medical improvement with a 4% impairment rating. The PQME noted she was not a candidate for additional future medical treatment and should continue with a home exercise program.

In the absence of a pharmacy ledger, our MSA included Tramadol 50mg #90 per month for her life expectancy. As there was no indication of ongoing physician visits; we allocated two physician visits per year for her life expectancy as Tramadol is a Schedule IV drug. Prescriptions for Schedule IV controlled substances may be refilled up to five times in six months. Therefore, a new prescription is required every six months, which would need two physician visits per year. CMS increased the physician visits to four times per year with the only explanation being additional physician visits “are necessary.”

NuQuest requested a re-review based on a potential CMS error. Our re-review request advised CMS that physician visits are required twice a year when Tramadol is being prescribed, as it is a Schedule IV drug. Tramadol is not a Schedule II drug, the increase to four physician visits a year was an error by CMS. CMS completed the re-review and reduced the physician visits to two per year.

While the decreased MSA amount was not significant, NuQuest knows that it is important to advise CMS when an error is made. Otherwise, CMS would continue to increase physician visits to four per year when Tramadol is being utilized and no active treatment is being provided.


Since the new WCRC contractor took over, we have seen an increase in the amount of diagnostics and physical therapy allocated by CMS resulting in many counter higher determinations. These counter higher amounts seem to be an increase between 5 to 10% of the submitted MSA amount.

Per the WCMSA Reference Guide, x-rays are allocated every 3 to 5 years and yearly if there was or will be a major joint replacement. MRIs are allocated every 5 to 7 years. CMS states these are guidelines only and determinations are made on a case-by-case basis. Other factors are considered such as the life expectancy, past surgeries, functional status, age of injury, treatment patterns, and provider recommendations. The trend we are now seeing is x-rays allocated every 3 years and MRIs allocated every 5 years regardless of these other factors. With the prior review contractor, these factors appeared to be taken into consideration as there were fewer counter higher determinations based on an increase in diagnostic services.

There are no physical therapy guidelines provided in the WCMSA Reference Guid, however, based on years of tracking CMS determinations, physical therapy (PT) is usually allocated at 12 sessions every 5 years for exacerbations. Additional physical therapy is also included post-operatively with the amount based on the type of surgery; 18 sessions for an arthroscopy; 36 sessions for a total knee replacement or total shoulder replacement; 24 sessions for cervical, thoracic or lumbar surgery; and 24 sessions for a total hip replacement. The prior review contractor seemed to take the type of injury and treatment patterns into consideration and accept the submitter’s allocation for PT if it was reasonable. The new review contractor appears to be increasing PT by allocating 12 sessions every 5 years for every orthopedic condition regardless of the type of injury and treatment patterns.

Here are a few example of CMS’ counter higher determinations based on increased diagnostics and/or PT.

Date of injury noted as 08/02/2012 for cumulative trauma with the following diagnoses: bilateral carpal tunnel syndrome, bilateral shoulder pain, bilateral knee pain, bilateral ankle/foot pain, cervicalgia, and low back pain. The life expectancy (LE) is 13 years. Future medical treatment included bilateral shoulder arthroscopies and bilateral ankle, right knee, and lumbar surgery. CMS included routine PT at 96 sessions for life expectancy; post-operative left shoulder PT at 18 sessions; post-operative right shoulder PT at 18 sessions; post-operative right knee PT at 18 sessions; post-operative right ankle PT at 18 sessions; post-operative left ankle PT at 18 sessions; and post-operative PT at 24 sessions for the lumbar surgery. X-rays were included every 3 years or a total of 4 in LE for the following body parts: cervical spine, bilateral shoulders, bilateral wrists, lumbar spine, bilateral knees, and bilateral ankles. MRIs were included every 5 years or a total of 2 in LE for all of these body parts except the wrists. The total amount of PT included in the allocation is 210 session in a 13 year LE. The submitted MSA amount was $93,483 and did not include the lumbar surgery per carrier’s request. The CMS counter higher determination was $180,217 as a result of the inclusion of the lumbar surgery and significant amount of diagnostics and PT.

Date of injury is 04/06/2007 for bilateral shoulder pain, bilateral knee pain, cervicalgia, and low back pain. LE is 19 years. Future medical treatment included bilateral knee arthroscopies, right shoulder arthroscopy, and lumbar decompression and fusion. 36 sessions of PT were included for exacerbations. Post-operative PT was included as follows: 24 sessions left knee arthroscopy; 24 sessions right knee arthroscopy; 24 sessions lumbar surgery; and 36 sessions for right shoulder arthroscopy. This is a total of 144 PT sessions for a 19 year LE. Submitted MSA amount was $246,941 with CMS counter higher amount of $269,957 due to increased PT.

Date of injury is 02/20/2015 for left shoulder pain, left wrist pain, left hand pain, left thumb sprain, left middle finger sprain, left ring finger sprain, left little finger sprain, and cervicalgia. LE is 12 years. Current treatment is medication management only with pain management.  24 sessions of PT were included for each of these body parts: left shoulder, left wrist, and cervical spine or a total of 72 sessions in LE. Submitted MSA amount was $21,106 with CMS counter higher amount of $28,578 due to increased PT.


Join Us on January 31st – NuShield Certified Compromise Webinar

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.


Centers for Medicare and Medicaid Services (CMS) will Introduce New Commercial Repayment Center (CRC) Contractor

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.