Why It’s Imperative to Keep Workers COVID Safe

Pam Sornson, JD

Even with vaccines being issued across the country, COVID-19 continues to pose a serious health threat, especially to those workers who must report to an office or out-of-home worksite each day. Not only can contracting the disease have lethal consequences, but it can also cause long-term side effects that interfere with the everyday enjoyment of life. Employers should take every precaution possible to avoid a COVID-19 exposure in their place of business and ensure that appropriate remediation policies are in place if it does. 

Worksite Workers May Get Sick More Often

According to investigations conducted by the U.S. Centers for Disease Control and Prevention (CDC) in summer 2020, people who routinely reported to a worksite or office each day were almost twice as likely to contract a COVID-19 infection as those who worked from home. Researchers came to the conclusion after comparing how often study participants visited other possible infection sites, such as grocery stores, gyms, or salons. Those numbers were similar for both at-home workers and in-the-office workers, indicating that exposure in the community was comparable between the two groups. The study also eliminated 'essential workers' from its cohort since those workers are more likely to be exposed to the virus simply because of the work they do. The CDC used the study to encourage employers and businesses to take every possible precaution to ensure a safe, COVID-19-free environment for staff members.    

An Expanding Complex of Symptoms

Avoiding a workplace exposure to the coronavirus is becoming even more significant as sufferers continue to report an ever-growing list of unexpected symptoms. Initially, when COVID-19 infections were first reported, the majority of reported symptoms were similar to those caused by an influenza virus and were primarily related to an upper respiratory tract infection: fever, cough, aches, fatigue, headache, etc. One symptom - loss of sense of taste or smell or both - appears to be unique to this disease.  

As the pandemic progressed, however, doctors were stymied by COVID patients reporting a plethora of symptoms that popped up during an active virus infection but weren't typically experienced as a consequence of an upper respiratory viral infection:

Gastrointestinal issues (GI)

Some COVID patients reported nausea, vomiting, and diarrhea in addition to the more typical symptoms, while others reported only these symptoms. In China, one study recorded more than half of its participants were experiencing GI symptoms.  

Skin changes

Skin rashes also developed in some patients, who described them as raised and painful bumps that showed up on various parts of their bodies that did not respond to typical, topical skin treatments. 

COVID toes  

In some patients, rashes presented as what became known as 'COVID toes,' swollen and discolored toes on one or both feet. While many sufferers noted just changes in toe color and size, others reported itchiness, soreness, and blistering. In some cases, the COVID toes were the only symptoms of the disease and presented well after their actual infection

 Hearing loss

Another confounding symptom reported is hearing loss, possibly caused by the coronavirus. Some patients report suffering an onset of tinnitus (ringing in the ears) after their COVID diagnosis, and one JAMA- Otolaryngology autopsy study found evidence of the virus in the middle ear canals of deceased patients. Several respiratory viruses are known to impact hearing, but those symptoms typically clear once the infection

is contained. With COVID sufferers, there have been reports of lingering deafness even after other symptoms have receded. The virus may also play a continuing role in balance and dizziness symptoms reported by many COVID-19 patients. 

Blood clots

Another worrisome, potentially deadly symptom that the virus may cause is blood clotting. One blood clot specialist, physician Alex C. Spyropoulos, MD, suggested that as many as 40% of hospitalized COVID patients at his hospital died because of blood clots, primarily because they cause such damaging incidents like heart attacks and strokes. He describes the disease as being particularly aggressive regarding the development of blood clots and that patients who have the virus are three to six times more likely to develop blood clots than those who don't have COVID-19.   

Brain fog

Perhaps the most troubling and surprising symptom reported by many COVID sufferers is brain fog or confusion. Sufferers report a cognitive decline during and after experiencing more acute symptoms and, in many cases, continue to struggle mentally long after the virus has cleared the body. Studies conducted at Indiana University's School of Medicine reviewed the cases of 1500+ COVID survivors and found that almost two-thirds (59%) stated they had difficulties focusing in the weeks and months after their other symptoms had resolved. 

'Long COVID'

That brain fog is apparently typical of what doctors are calling 'Long COVID,' the continuation of symptoms that linger well after recovery should have been complete. The most commonly reported 'Long COVID' symptoms are difficulty breathing, chronic fatigue, and migraine headaches. Increasingly, though, cognitive dysfunction is popping up on symptoms lists. In a global study conducted in fall 2020, researchers discovered that many Long COVID brain fog sufferers couldn't return to work at full capacity for at least six months after recovering from their more acute COVID symptoms.

The study also attempted to gather into a single list all potential symptoms caused by the coronavirus. Reviewing the files of over 3,700 people, researchers recorded over 200 individual symptoms that affected ten different systems and 66 symptoms that lasted seven months or more.     

Employers Take Note

Even with the emerging health data indicating that a COVID-19 infection can cause significant havoc in a worker's life, many employers around the country are still reluctant to assert formal COVID-19 prevention practices at their workplace. In some cases, this reluctance may be because local governments haven't issued them, and business owners don't want or can't afford to incur the expense necessary to make those changes

In other cases, however, companies ignore new regulations designed to keep workers safe. In Michigan, for example, the state's Occupational Safety and Health Administration (MiOSHA) recently issued 23 citations against companies that violated its COVID-19 related "Emergency Rules," with each violation carrying a potential fine of up to $7,000. What makes these incidents so dismaying is that the breaches were so readily avoidable: the three most cited violations across all cases involved failing to require face masks, failing to maintain social distancing, and failing to have a preparedness and response plan ready in the event an infection was discovered. Each of these elements can be relatively simple to implement and enforce, especially when the health of a worker and the business itself are at stake. 

Why employers expose their workers to such potentially damaging conditions is a mystery. If nothing else, lingering brain fog and confusion should be of great concern to companies that rely on their workers to perform at optimal levels most of the time, especially those whose work entails precise movements or activities. Further, an undetected but infected worker also has the capacity to infect business colleagues and customers, which escalates the risk of loss to the business. In all cases, even just one case of COVID-19 at a workplace carries the potential for an expensive worker's compensation claim, and may even trigger a more serious civil claim, to boot.  

Follow Federal OSHA Guidelines 

The fact that there are many states that have not yet adopted COVID-19 safety rules shouldn't deter a company from implementing them anyway using the guidelines issued by the federal OSHA agencyFederal OSHA details the many steps needed to make a corporate facility ready for worker occupation again, especially those that have been shuttered due to coronavirus lock-downs. The organization also details the steps necessary to bring a worksite into compliance with federal COVID-19 standards, including conducting a hazard assessment, developing policies that protect worker safety, and maintaining open communication channels for workers who wish to report a COVID-19 related concern.     The emerging health data should act as a warning to employers who have not yet implemented employee safeguards to prevent or curtail the spread of coronavirus disease in their offices and workspaces. While some may think that such precautions are unnecessary, it's becoming increasingly clear that leaving anyone at risk of infection could have long-term consequences that may not take a life but still seriously curtail or negatively impact a worker's life. And even one sick worker imperils the health of the business itself. 

According to recent research, the COVID-19 virus has impacted America's aging population more than almost any other group. The diagnosis carries with it almost certain and dramatic changes in lifestyle and capacity for afflicted Medicare beneficiaries, many of whom are now concerned about the subsequent costs they may have to bear as a consequence of getting sick. While Medicare is working to address the challenges posed to this population by the virus, including how to cover those costs, some employed beneficiaries might find another resource through their worker's compensation insurance.    

Higher Age = Higher Risk of Serious Illness

The data suggest that Medicare beneficiaries or those who become eligible for that status within two years are more apt to get seriously ill should they contract the 2019 novel coronavirus. That reality is a major concern both for Medicare beneficiaries who have not gotten sick, as well as those who have employed it. As of winter 2021, over 62 million Americans were enrolled in Medicare, including those who engage through a Fee-For-Service model (FFS) and those who engage through a Medicare Advantage program (MA). 

Between January 1, 2020, and November 21, 2020, of those 62+ million seniors:

  • more than 1,929,000 Medicare beneficiaries had been diagnosed with the disease, and 
  • almost half a million (493,167) of those patients were hospitalized. 
  • Tragically, nearly one in five sufferers (19%) lost their lives to the disease while hospitalized, 
  • while another 5% were discharged from the hospital to a hospice facility. 
  • However, more than one in three (35%) could return home after recovering from the illness.  

Many in these groups also suffer from a co-occurring health condition, which complicates both the significance of their illness and their recovery and long-term capacity. A large percentage of the FFS beneficiaries (79%) were also diagnosed with high blood pressure (hypertension); 49% were also diabetic, and another 49% suffered from chronic kidney disease. 

Age + Illness = Expense

The age and complicated medical history of these seniors increase the likelihood that they'll suffer more significant damage due to the disease. That situation will almost certainly generate higher costs, as well, for both acute and long-term treatments, a fact which concerns over 80% of participants in a recent MedicarePlans.com survey. Additional research indicates that they are rightfully concerned about a COVID-19 diagnosis's financial fall-out. Because of the variety of available Medicare plans and the varying terms each of those contracts contains, some Medicare beneficiaries will pay more for COVID-related healthcare services than others:

Basic Medicare

  • Many beneficiaries (6.1 million) carry only Basic Medicare coverage, which follows the standards set out in the original Medicare plan. These include Part A (hospital care) and Part B (outpatient care.) These COVID patients may receive a significant medical care bill depending on the severity of their sickness and the amount of time they've spent in the hospital:
  • The standard deductible for hospital care was $1,408 in 2020 (rising to $1,484 in 2021). This covers the first 60 days of hospitalization, after which they accrue a daily co-pay of $352 ($371) for up to 90 days. If further hospitalization is needed after that, the daily rate of $704 ($742) is assessed and drawn from the participant's 'Lifetime Reserve."   
  • Those 'basic" patients who move to a skilled nursing facility pay no co-pay for the first 20 days, then accrue $176 ($185.50) through day 100. 
  • Outpatient doctor's visits, delivered through Part B, have a reasonable deductible of $198 ($203), while patients pay 20% of the cost of covered services. These costs are over and above the hospital fees accrued under Part A. 
  • Medicare Part D - prescription drug coverage - has no cap on spending, and deductibles can be as high as $445 (in 2021) depending on the specifics of the coverage and the drugs in question.  

Medicare Advantage Plans

Approximately 24 million beneficiaries receive their Parts A and B Medicare benefits from a Medicare Advantage program, which also usually includes prescription drugs. 

  • These programs often add additional premiums on top of what their participant already pays for basic Medicare, or they vary their standard deductibles and co-pays, depending on their structure.  
  • These additional fees usually change how Medicare pays for the services. In some cases, patients don't pay a deductible for hospital care but instead pay a daily co-pay for those services.     
  • Many Advantage plans have also altered their 'standard cost-sharing' practices ('cost-sharing' refers to co-pays, deductibles, etc.) to reflect the significance of the COVID-19 concern. As early as March 2020, many such insurers were:
  • providing COVID-19 testing and treatment services at no cost;
  • waiving prior authorization requirements, allowing patients to access medical services at a much faster pace;
  • encouraging the use of Telehealth services to facilitate access to healthcare services by home-bound patients and those with limited mobility;
  • offering financial assistance to struggling providers striving to meet the demand driven by COVID-19. To date, they've advanced millions of dollars to cover claims payments and even provided direct donations to service providers that need the support to maintain their level of service. 
  • Not insignificantly, these insurers are also directly supporting vulnerable populations, including donating to food services for families and older Americans and supporting emergency healthcare services to vulnerable people that inhabit society's fringe, including the homeless.    

Medicare Advantage plans also cap annual out-of-pocket costs; in 2021, that figure is $7,550.

Medicare Costs Looking Forward

Medicare is also looking ahead to determine how it can assist the country in meeting its future COVID-19 threats:

  • lab tests,
  • antibody tests,
  • monoclonal antibody treatments for those with a positive diagnosis who have mild or moderate symptoms, and have high-risk factors that the disease might advance more rapidly in their case, and
  • telehealth services to reduce the need for face-to-face exposures. 

The cost to Medicare for COVID-19-related care was estimated at approximately $7.4 billion just for FFS COVID-19 hospitalizations between January 1 and November 21, 2020, with an average of $23,500 per hospitalized case. 

  • Further, while all available data remains unclear, in June 2020, some entities estimated that the total spending to address and curtail the pandemic might reach as much as $546.6 billion by the end of 2021. Hospitalizations appear to account for a significant portion of that value. 
  • The same research indicates that consumers may face out-of-pocket costs of up to $1,300 over the course of their illness, which, when aggregated across the entire population, would total an additional $2.8 to $48.6 billion. To the extent that these consumers are also seniors, those extra costs may represent the difference between treatment and eating or heating or rent. 

Another Payment Alternative

Despite the pandemic, many Medicare beneficiaries continue to work. A 2017 survey indicated that the 'Baby Boomers' (those born between 1946 and 1964) were not interested in retiring early. The employment growth rate for their 65-74-year demographic was likely to surpass 60% between 2014 and 2024. Clearly, COVID-19 has slowed that progress, but there are still millions of seniors who continue to work despite the turmoil caused by the disease. Sometimes that work may increase their risk of experiencing a COVID-19 exposure. 

If or when that exposure occurs, many of these workers may have another option instead of Medicare to cover their COVID-related healthcare costs. Many states now recognize that COVID-19 can be contracted through employment-related activities and therefore can be considered a 'workplace injury' for purposes of receiving workers' compensation insurance coverage. However, if or when they make that claim, they should also be sure to establish a Medicare Set-aside Account (MSA) to protect their Medicare funding for future healthcare costs that are unrelated to their COVID experience. 

Today's Medicare recipients and eligibles are facing more than just a devastating health threat; they are also contemplating possible impacts on their economic situation should they contract the virus. However, those who are working may have the opportunity for their worker's compensation insurer to pick up COVID-19 related costs to preserve their Medicare healthcare funds for future use. They should explore that possibility at the first sign of illness,    

Last month, we covered the 10,000' view of the system used by the Worker's Compensation Review Contractor (WCRC) to determine the merits of a Medicare Set Aside (MSA) account proposal. Not surprisingly, each separate element of the system also includes a series of smaller systems designed to clarify ever more granular information about the injured party, their injuries, their prognosis, and who will be covering those healthcare costs going forward. MSA professionals who master those more precise details are better prepared to achieve a swift and successful MSA acceptance when submitting their client's proposal.


Three Rules to Remember

When developing an MSA proposal, it's easy to miss critical but tiny details when your focus is on the much larger picture. However, in many instances, it is because of errors, confusion, or lack of the information that should be contained in these details that proposals get rejected or delayed. Delays occur when the WCRC doesn't get the data it needs to conduct a thorough review. Rejections happen when ill-prepared proposals reveal a claimant who is not eligible for Medicare, whose case doesn't meet the threshold, or when the case's legal issues aren't resolved (among many, many other reasons). Both delays and rejections are expensive because they mandate either additional work or waste the work that's been done. They also drag out the case for a longer period of time, incurring additional legal and other fees for associated services.


Here are three rules to remember when crafting an MSA proposal. Professionals who want to achieve the swiftest acceptance of their accurate and appropriate MSA proposal will have paid particular attention to these suggestions.


1)      Don't Skip the Prerequisites

It's best practice to ensure that all essential information is accurate and included in every MSA proposal, yet, often, it is these precise details that get missed.


Complete Information about the Claimant

In addition to the basics, the Claimants' name, date of birth, address, and Medicare Identity number (or social security number if not yet Medicare-eligible), the proposal must also include:

    • the name and contact information of their counsel,
    • their Medicare Entitlement information (whether they're enrolled in Part A and Part B, or just Part A), and
    • their signed release that permits access to their records by the WCRC.


Proposals filed on behalf of claimants who are Medicare eligible must include:

  • data regarding any Social Security Disability Benefits (SSDB) activity,
  • their age (reflecting their eligibility), and
  • whether they are diagnosed with End-Stage Renal Disease (ESRD) but don't yet qualify for coverage on that condition.


Complete Information about the Legal Case

Because a workers’ compensation claim is at the heart of most MSA proposals, it is crucial to include:

  • the name of the Claimant's employer,
  • the name of the Worker's Compensation insurer,
  • the name(s) of any attorneys involved, and
  • the state in which the injury occurred. (The state's individual Worker's Compensation rules will govern the ultimate disposition of the case.)

Additionally, it is important to list out the details of the proposed settlement costs, including the total proposed settlement amount, which should cover economic values for:

    • wage replacement or disability,
    • future medical and prescription drug treatment,
    • attorney's fees,
    • any repayment of conditional payments information,
    • payout totals for proposed annuities established to cover future medical payments, and
    • the value of any previously settled portion of the WC claim.

Perhaps most importantly, include the total and detailed itemization of the proposed MSA amount, including the presumed costs of both medical care and drug costs. This itemized value is the cost Medicare would avoid paying because the WC insurer is assuming that obligation.


Complete Information about the Substance of the MSA

The proposal should also include clear documentation for each element of the MSA case - those details that are of specific interest to Medicare, including:

  • A Patient Medical Recovery Prognosis, which describes the type of recovery anticipated (full or partial), and when the Claimant is expected to achieve 'maximum medical improvement;'
  • A Life Expectancy evaluation which includes language explaining whether the injury might shorten the Claimant's life span,
  • A detailed LifeCare plan detailing supports for injuries that have caused extensive or egregious damage, such as a brain injury, loss of limb, or paralysis;
  • A current care evaluation, which includes the Claimants current treatment protocols;
  • A future treatment plan, detailing how the Claimant's situation will be managed after the WC case closes;
  • A prescription drug evaluation;
  • A proposed amount for future medical treatment, and
  • A proposed MSA valuation amount.



Complete Information about the Administration of the MSA

In addition to the factors indicating the case's financial resolution, the WCRC is also interested in the administration of the MSA once it is established. The MSA proposal should, therefore, include data detailing these activities, such as:

  • who the administrator will be. Some MSAs are administered by professional service providers. In other cases, the Claimant elects to manage their own MSA account;
  • the MSA structure, whether it's to be funded by a lump-sum payment or through an annuity arrangement that funds the account on a yearly basis. Note that all MSA accounts must be held in an interest-bearing account;
  • the fees incurred for the establishment and administration of the account. Note that these fees are NOT included in the MSA account itself but must come from another unrelated source of funding, and
  • finally - the agreed-upon MSA settlement amount stated in a fully executed settlement agreement.



2)      Don't Muddy the Water

It's not unusual for an MSA proposal to include more than one injury, and CMS details how to manage those circumstances, too.


Document, Document, Document

The mandate to protect Medicare from paying for costs that aren't its rightful obligation is always the WCRC's primary concern, and multiple claims within a single submission can cloud the specifics of each. Ergo, asserting numerous injuries in a single MSA proposal also triggers the requirement to provide additional information to inform the WCRC about the proposed resolution of each of the cases. In these cases, the WCRC separates out each case according to the relevant date of injury (DOI).


Start at the Top

It is critical to inform the WCRC in the cover letter:

  •  that there are multiple injuries/cases included within the single MSA proposal, and
  • how the Claimant intends to handle those.


The WCRC wants assurance of a complete accounting for each individual claim, so it will look to the Claimant's proposal for information supporting those declarations. Some Claimants can lump all the DOI cases into a single MSA amount and are also able to describe how those distributions will work in execution. Other Claimants may separate each DOI case into a separate MSA and build out those MSA amounts accordingly.


If the WCRC doesn't get enough information about managing multiple injuries, it will close the file until it receives that data in writing.


Parse Out the Data for Each DOI

The proposal should include all relevant information identified by DOI regarding accepted and alleged injured body parts. Most helpful for the WCRC reviewer are the appropriate ICD-9 or ICD-10 codes (noting that the ICD-9 codes apply only to injuries sustained before September 30, 2015). Accompanying the codes should all associated payment histories, medical records, and detailed prescription histories for all medications received as a consequence of the injury.


Note, too, that if less than all claims have resolved sufficiently for an MSA discussion and claims will remain open, then the overall case is not yet eligible for review. 'Open' cases include those where there are some body parts still receiving treatment, where the insurance carrier continues to pay from some but not all treatments on a particular body part, or where medical claims are settled but pharmaceutical claims are not.


3)      Don't Miss the Mark on the Drug Data

A significant percentage of every MSA proposal covers the cost of prescription medications, and the WCRC will pay careful attention to the adequacy of the proposed prescription drug costs.

  • All proposed medication must be FDA approved or supported for the designated use by the reviewers' compendia of pharmaceutical resources.
  • The proposal should document how the proposed drug and pharmaceutical recommendations are in line with past drug history, provider medication lists, and treatment notes, and address the probable future need for prescription drugs.
  • Note that the WCRC uses the Red Book Drug Reference guide as its pricing resource, using the Average Wholesale Price to establish those costs within the MSA.
  • The reviewer will ascertain that any prescription drugs listed in the proposal were prescribed within two years specifically to treat the WC injury. They will also seek input from a pharmacist when there are questions and won't sign off on the proposal until those concerns are resolved.


All treatments included in the MSA proposal must also be covered by Medicare and follow both national and local coverage guidelines.


The Medicare Set Aside account provides the best possible support for an injured worker who needs ongoing medical care for that injury. When carefully crafted and correctly submitted, the MSA proposal avoids unnecessary delays and provides the documentation required to get the account established and the Claimant moving forward.

The COVID-19 pandemic has dramatically changed life around the world, halting whole global industries while shutting down cities, regions, and countries. The necessity of shuttering a company due to the coronavirus has caused immense financial and personal distress in virtually all industrial sectors. Millions of workers no longer have jobs as their employers closed up their business before its staff could transmit the virus. For many companies, that stress will be ongoing until society contains the spread of the virus, a valid vaccine is issued, or both.


At the same time, millions of others have also remained on the job, continuing their daily work despite the virus that permeates their community. Some fortunate employees can work from home, where they can stay both productive and safe. However, the nature of work of others exposes them to risks that did not exist before the time of the COVID-19 pandemic. Many of these 'essential' workers must continue clocking in, knowing that the style of their work or the people they serve might make them vulnerable to catching the coronavirus themselves. For these employees, the question of whether they can file a Workers’ Compensation (WC) claim because they got infected on the job remains unresolved.


When Not Working is Not an Option

'Essential' businesses provide or maintain the country's fundamental infrastructure: its food supply, energy supply, healthcare services, and more. Without them, other essential workers who are actively battling the virus would have no resources available to sustain their effort.


From a WC perspective, however, these essential workers are regularly exposed to the virus while at work. Their employers are rightfully nervous about a variety of possible scenarios:

  • If/when their worker gets sick, will their Workers’ Compensation insurance cover the claim?
  • If there is available coverage, can it be mitigated or voided because of COVID-19-related circumstances?
  • If there is no coverage, why does it not apply?
  • Who or what will provide needed healthcare if the WC carrier denies the claim?


The challenge is heightened by the fact that liability issues may arise if WC coverage is not available. COVID-19 has created a nightmare scenario for both workers and employers, where neither group has an assurance that the systems they have in place will protect them if they are affected by the virus.


WC Standards Also Cause Confusion

Fundamental realities of settled WC law may or may not apply to COVID-19 cases, but they will certainly pose a hurdle to those who want to resolve these claims expeditiously.


At first blush, several initial questions come to mind:

  • WC premiums are set based on the nature of the work and the class of occupation. The coronavirus concern may have changed the type of occupation if workers are now facing potential infections during their routine job tasks. Should premiums rise because of the virus to ensure coverage in the event of an infection? If premiums don't change, will they still cover a COVID-19 claim that was not contemplated when establishing the policy?
  • If a worker claims to have become infected at work, how do they prove that fact? In some cases, such as medical services providers and first emergency responders, there may be an evident and natural connection between work-related exposure and subsequent illness. But what about workers who are in occupations where that connection isn't as clear, such as grocery store workers or gas station attendants? What level of proof must they provide to draw the line between their exposure and their infection?
  • Another necessary determination is whether the onset of a COVID-related illness is an 'injury' per WC law or an occupational disease. For front-line workers - those who work with COVID-19 patients on a regular basis - the onset of illness may be deemed an occupational disease since their high exposure to it makes it more likely that they, themselves, would get sick. For those who aren't on those front lines but who are working in an 'essential' position, for example, their sickness may be deemed an 'injury' if it is traceable to a single exposure that occurred while they were working. Their challenge would be to prove that the exposure did happen while they were in the 'course of their employment.'
  • If WC isn't available or is denied, is the employer then exposed to liability for the affected worker's healthcare costs? Would this situation mandate an investigation into potential 'unsafe work practices' on the part of the employer specifically regarding their handling of the virus threat?


Monitoring Medicare Concerns

Employers who have employees who are (or soon will be) eligible for Medicare, or who already have a Medicare Set Aside (MSA) account should be very attentive to those life circumstances while the pandemic remains extreme. In many cases, these workers are members of vulnerable populations due to their age, ethnicity, etc., and a coronavirus infection could prove fatal to them.


Both situations raise questions about how the healthcare system will engage with those workers if they become sick with COVID because of their job. They will also muddy the legal water around the extent of the employer's mandate to cover the cost of work-related injuries or illness when those injuries occur due to a COVID-19 infection.


Eligible or Soon to be:

Workers who are moving onto the radar of the Centers for Medicare and Medicaid Services (CMS) because of their age or disability status must be conscientious about how they manage and record their risk of exposure to the virus. Most, if not all, of this population group will already have some form of pre-existing condition that will be covered by CMS funds once they begin drawing from their Medicare healthcare account. Assuming the worker can prove they became COVID positive while in the course of their employment, they'll also need to specifically parse out the healthcare services received in response to that illness and attribute those costs to the WC funder. It's crucial that they don't bill CMS for those expenses. They should also note that the COVID-19 disease may exacerbate their pre-existing conditions, which may require long-term WC coverage through an MSA to cover the expenditures flowing from that element of their recovery.


Workers with Existing MSAs

These workers have an established MSA account for a previous on-the-job injury, and the care they receive for that should not be affected by the fact that they've contracted COVID-19. However, they should note that many healthcare facilities are overwhelmed by treating COVID cases, so their ongoing treatments may be delayed or postponed until after the pandemic subsides.


This situation also raises the question of what would happen if the worker caught COVID on the job, got sick, and developed permanent damage requiring long-term medical services. Would that worker need to pursue an independent MSA to cover those costs? Could they add those costs to their existing MSA and have the WC carrier increase that fund value?


Again, careful diligence about recording healthcare practices and adverse symptoms by both eligible and existing Medicare recipients will help them determine how contracting the virus at work will affect their Medicare or Medicaid funding in the future.



This coronavirus is changing virtually all aspects of American life, including how workers receive care for on-the-job injuries or illnesses. The patchwork of state-by-state WC laws will enhance the confusion as those industry stakeholders struggle to comply with both their local and federal regulations around WC injuries and healthcare services. One thing is certain, however: the COVID-19 pandemic will cause not only millions of illnesses but also changes to long-settled WC laws as employers, employees, insurers, and government work to 'standardize' an unmanageable situation.

Since October 2015, the recovery of Medicare health care payments from both Group (GHP) and Non-Group Health Providers (NGHP) has been managed by CGI Federal. CGI is the first contractor for the Centers for Medicare and Medicaid Services (CMS) Commercial Repayment Center (CRC), which collects back from third-party entities provisional payments made by Medicare on behalf of its injured members. However, on February 9th, 2018, management of those recovery services transitions to Performant Financial Group. Entities currently involved in GHP and NGHP/Medicare member cases may want to rethink their MSA opportunities as the new contractor takes up the Medicare "recovery of funds" challenge.

CRC Seeks Refunds of Mistakenly-Made Payments

The purpose of the CRC is to identify and recover primary health care payments made on behalf of injured Medicare members when another entity carries the legal responsibility for those fees. Until 2015, CMS's Benefits Coordination & Recovery Center (BCRC) was responsible for tracking down and collecting these funds. That process became unwieldy, however, because that agency was tasked with collecting from not just third-party entities, but also from the beneficiaries themselves. Wisely, CMS elected to bifurcate the burden and transitioned off the third-party collections responsibility into the newly created CRC.

Since its inception, the CRC has been collecting mistaken payments from both GHP's, the injured member's employer's health care insurance provider, and NGHP's, other entities with the legal responsibility to cover these healthcare costs, including no-fault insurers, liability insurers, and entities that are self-insured.

Effect on Insurers

For many companies, the collection notice came as an unwelcome surprise. Many no-fault and liability cases had been open for years, sometimes decades, and the CRC was now demanding a refund of all Medicare provisional payments made in those cases. Companies scrambled to review their files for Medicare members and to set up systems to identify, respond to, and proactively work to resolve any and all affected open cases. Some companies had to reimburse thousands of dollars to the agency for claims paid years earlier.

MSA Cases Had an Easier Time

For worker's compensation cases, the number of repayment notices was significantly less than those issued in other Medicare-related cases. Since 2001, CMS has been a party to injury cases involving injured members and Worker's Compensation carriers. For both pre- and post-settlement purposes, legal representatives of the insureds and the insurers must consider Medicare's interest regarding future healthcare payments and include a Medicare Set Aside (MSA) agreement in the settlement when future health care coverage is required.  Consequently, worker’s compensation entities managing healthcare services through MSA's had no backlog of unreimbursed Medicare payments because they had budgeted for those costs as the case closed. In these cases, the services of the BCRC (and now the CRC) are unnecessary; Medicare's interest had been resolved before the case fully resolved.

Learning from the WC Example

The incoming CRC agent offers a heads-up opportunity for any entity dealing with Medicare members in any sort of injury case, regardless of whether it is based on a liability, no-fault, or self-insured claim. In 2017, CMS announced new set-aside procedures for NGHP's (Liability Insurance injury claims and No-Fault injury claims) that recommend establishing an MSA in the originating case. The new procedures may be enforceable as early as July 2018. Although that announcement indicated that the Worker’s Compensation Recovery Center (WCRC) would be reviewing the cases, it may eventually turn out that the new CRC contractor will assume those obligations. No matter who the overseer turns out to be, a best business practice mindset would suggest that entities that may be held accountable for future repayment of relevant Medicare healthcare costs should begin developing their MSA contacts and procedures sooner rather than later.

Certainly, looking at Performant's history and intentions, the new CRC contractor intends to pursue any entity that may owe reimbursement funds to CMS; in its announcement about the new contract, Performant noted its intent to staff the project with more than 250 employees dedicated to the Medicare cause. And the company has significant experience collecting funds for the government; it is also a Private Collection Agent (PCA) for the U.S. Treasury Department and a Recovery Audit Contractor for Regions 1 and 5. While Performant will not be the recovery agent for WC cases (that contract went to Capital Bridge LLC), the anticipated increase in MSA review volume suggests that it may assume some of those obligations in the future.

Launching the New CRC Contract

Two webinars hosted by CMS informed the Medicare healthcare community of the process by which the transition will occur:

  • On February 9, CGI will cease its work as the CRC contractor and on February 12th Performant takes the helm of the agency. The 8th and 9th will be "dark" as CGI transitions its entire CRC library over to Performant. (Note, Performant requests that no entity in any case submit duplicate materials; it will have the entire case file in its control once the transition is complete.)
  • Both Performant and CMS assert that there will be no changes to existing processes or procedures because of the change of contractor. All entities with Medicare involvement are encouraged to continue with business-as-usual.
  • The contact information for the new CRC contractor is:

Medicare Commercial Repayment Center – NGHP, P.O. Box 269003

Oklahoma City, OK 73216

Fax: (844) 315-7627 (new number)

Phone: (855) 798-2627 (maintained as the current CRC Call Center phone number)

8:00 AM – 8:00 PM ET

Looking Forward

The events of 2017 (new LMSA and NFMSA rules and two new contractors) will certainly trigger ancillary changes to MSA and CMS procedures in 2018. At CompExMSA, we will continue to seek out answers to your MSA questions and look forward to assisting both existing and new clients with their MSA practices, processes and needs.

Opioid Treatment Offers Hope to Injured Workers

Despite increased press coverage and a growing sense of national alarm, America's opioid addiction problem continues to expand. The number of people dying of overdoses each year has skyrocketed so high that it is impacting the calculations that determine the average American lifespan. And tragically, in the majority of cases, treatment for the condition isn't available.

However, new research indicates that treatment is, in most cases, effective in stopping the cycle of addiction while also revitalizing the social, occupational, and psychological functioning of the addict. For employers with injured workers who take prescription pain medications, combining those medications with treatment and counseling offers a safer, less expensive course to help employees recover from their injury and avoid becoming addicted to their pain pills.

Opioid Addiction by the Numbers

According to Blue Cross Blue Shield, 21 percent of its commercially insured members filled an opioid prescription in 2015, while the number of its members diagnosed with an opioid addiction grew 493 percent in just the six years between 2010 and 2016. Meanwhile, the Centers for Disease Control and Prevention (CDC) estimate that, since 1999, more than 60 percent of all overdose deaths involved an opioid drug. The Agency further asserts that from the year 2000 through 2015, more than half a million people have died because of their opioid addiction and that 91 people die each day because of an opioid-related overdose.

Decreasing Life Expectancy Rates Caused by Opioids

Last week, the CDC reported that the large number of opioid-related deaths had reduced the average life expectancy by 2.5 months, or .21 years. The Agency used data collected from the National Vital Statistics System-Mortality file, which warehouses death data collected from all 50 states and the District of Columbia. When reviewing death data from the years 2000 through 2015, the national average lifespan grew by two years, from 76.8 to 78.8 years; however, that number would have been higher but for the immense number of opioid deaths. By comparison, alcohol-related overdose deaths were responsible for just a .02 year decrease in life expectancy. No other factor had a greater impact on the average national life expectancy than the number of opioid overdose deaths.

Opioid Addiction Impacts the Economy

An equally troubling statistic reveals that opioid addiction also explains why many "prime age" workers (those between 25 and 54 years) are unable or unwilling to find work. According to a 2017 study by Goldman Sachs (GS), the male American labor force has shrunk by ten percent since 1954, and in the opinion of a GC economist, "the opioid epidemic is [part] of the declining prime-age labor force participation, especially for men." According to a 2016 White House survey of unemployed workers, which used Federal Reserve Data in conjunction with survey data, of the 1.8 million workers "out" of work, almost half of the survey respondents - 881,000 - reported that they had taken an opioid drug the day before. (The status of "unemployed" was for reasons not related to retirement, student-status, disabilities, or caring for family members.)

Further, the opioid epidemic also stymies the chances of finding a job. The Federal Reserve Data also showed that, although the primary reason businesses were unable to hire workers was because of lack of skills, another significant reason was that those potential employees couldn't pass a drug test.

Opioid Treatment is a Rarely Invoked Option

Despite the fact that treatment interventions positively impact an addict's ability to stay sober for 18 months and reduce the number of overdose deaths, only one in ten people received any specialized treatment related to their addiction, according to a 2016 Surgeon General's report. That report posits that at least one reason for the lack of treatment for such a wide-spread concern is the current cultural belief that stigmatizes drug addiction as a moral failure punishable by criminal sanctions. Shifting the social perception to view illicit drug use as a healthcare concern and not a criminal concern may encourage both addicts and the people who care for them to be more proactive about pursuing treatment.

But Treatment Works

According to research conducted by the National Institute on Drug Abuse (NIDA), the supports offered by drug abuse treatment programs are effective in reducing drug use as well as helping recovering addicts to regain their social, psychological, and occupational function. The most effective substance treatment protocol includes a combination of both medicines (methadone and buprenorphine are considered "essential" by the World Health Organization) and behavioral interventions. And medication treatment is not simply exchanging one addictive for another; the medicines reduce the cravings and symptoms of withdrawal, which allows the brain to rebalance itself and heal from the toxic effects of the addiction.

Opioid Treatment: An Option for Employers

Consequently, more employers are considering adding addiction treatment options to the recovery protocol when their workers are injured on the job. Rather than risking the potential development of an addiction powered by prescribed pain medications, employers can prepare their employees to avoid that situation by receiving appropriate treatment before addiction sets in. The costs of supporting a drug addiction are always higher than the costs of treatment, especially when workers return to the job yet fail to resume their full capacity. Also, taking the opioid challenge into account when setting up the employee's recovery options keeps the worker's best interest at the center of that process.

There is no evidence that the opioid crisis is abating. Employers can elect to be part of the solution to the problem, however, by adding addiction treatment options to the recovery plan for their inured employees. They'll be saving money, but more importantly, they may also be saving the life of their valued worker.

Settling a Workers' Compensation (WC) claim can be a long and arduous journey that many resolve through the establishment of a Medicare Set-Aside (MSA). However, the terms of these legally binding agreements are expected to cover all contingencies over the course of the worker's lifetime. What happens when circumstances change and the conditions of the settlement no longer achieve the goals of the injured party? A recent California case indicates that trying to change the terms of an MSA may end up being another long and arduous journey.

Setting Up the MSA

The Medicare Set-Aside (MSA) agreement is designed to provide resources for the long-term best possible care for a lingering injury and its consequences. Through the process of the workers' compensation case, the parties to the case - the worker, the employer, the insurance company and Medicare - negotiate to ensure proper compensation for the injured worker while containing the long-term health care costs to those related solely to the workplace injury itself. The resolution of the case, via a settlement agreement providing an MSA, is intended to ensure the worker's long-term comfort (as much as possible) and offer reasonable assurance to the insurance company and Medicare that the case will remain forever closed.

The Best Laid Plans ...

Recently in California, however, an MSA agreement was tested for its capacity to address all contingencies after the WC closes. There, an injured worker sought to change the terms of his MSA so he could eliminate the third-party contractor from the MSA agreement and assume its administration personally. The injured worker, Applicant Fernando Villalpando, filed a claim before a Worker's Compensation Administrative Judge where he argued that he was not satisfied with the care he received through the services of the MSA administrator and that his experience justified the modification of the agreement. By filing and arguing the case, however, Mr. Villalpando inadvertently revealed several legal anomalies specific to MSAs that are not yet resolved but will, in all likelihood, continue to arise in future MSA cases.

The Underlying Case

Villalpando based his WC complaint on injuries suffered between 2002 and 2003; the Compromise and Release (C&R) agreement containing an MSA and a third-party administrator, was reached in 2011.  Although the agreement contained a clause whereby Villalpando released the third-party company from liability for "failure to ... correctly administer a Set-Aside account ...," it may not have included language that allowed for such a modification at any time, even though the agreement was set to run for 29 years. Villalpando argued that the medications he was on when he agreed to the settlement prevented him from fully comprehending the nature of the contract; that the third-party administrator moved forward with the MSA without his consent, and that the MSA failed to include two medications potentially because they were too expensive.

The WC judge (WCJ) denied the petition because the Applicant had not shown that the administration of the account was inappropriate. Villalpando appealed, and the WC Appeals Board (WCAB) remanded the case back to the WCJ. In its written opinion, the WCAB spoke to the many unanswered questions posed by the case starting back when the MSA was established in the first place.

The WCAB pointed out:

  • The WCJ hadn't evaluated the terms of the MSA agreement itself to determine if it DID have language permitting its modification;
  • Without that data available to the WCAB, the panel could not determine if such a modification was permissible;
  • If there was such language, and the Applicant was able to seek the change for self-administration of the MSA, then
  • Mr. Villapando must present evidence that he is competent to manage the MSA account appropriately.
  • If the agreement was silent on the issue, then the WCJ would have to address Villalpando’s issue within that context.

The WCAB sent the case back not just to the WCJ, but also to Villalpando's original attorney, so he could get the legal assistance he needed to understand the terms of the MSA agreement and his rights and obligations contained within it.

Questions, Questions ...

The case offers insights for any entity charged with the crafting of an MSA agreement. At the least, they should consider and account for all possible future contingencies, including the need for any party to the agreement to seek a change to its terms after the case closes. Depending on the facts of each WC case, it may be wise to include language allowing the injured individual to review and modify terms after sufficient time as passed for that person to gain clarity about the sufficiency of the agreement to meet long-term needs. And, to alleviate the need for unnecessary judicial review, perhaps the MSA should include language that lists the requirements necessary for an injured person to self-administer their MSA and the evidence required to prove competency for that purpose.

By addressing the concerns revealed by the Villapando case into each MSA going forward, claimants, attorney’s, and MSA administration agencies may prevent the need for another long, arduous legal journey through the WCAB process.



For almost all of its history, a settled principle of American jurisprudence is that federal law supersedes state law. When there is a question of which body of law should control in any particular case, when applicable, federal law almost always triumphs. The principle holds true for rules involving the Centers for Medicare and Medicaid (CMS), too. Federal rules supersede state laws in cases where the rights and obligations of Medicare beneficiaries and the medical professionals who serve them are at issue. Usually.

California Offers a Different Perspective

In California, recently, state law was deemed the governing rule in the case of California Insurance Guarantee Association (CIGA) vs. Burwell, 2017 WL 58821 (C.D. California, January 5, 2017). (See our blog post about this case, here). In that case, CIGA was protesting the CMS request for reimbursement of funds that were unrelated to the underlying worker's compensation claim. The U.S. District Court declared as guiding law a California case holding that state law determines whether an insurer has an obligation to make payments on behalf of its insureds. According to that state law, the insurer was not obligated to make those payments, and therefore CMS, as the Mandatory Secondary Payer, was not entitled to reimbursement for payments made on the insured's behalf.

Unsettled Legal Precedents

The California ruling adds a ripple to the already unsettled legal waters about who's in charge of what and when in Worker's Compensation (WC) cases where significant injuries have occurred. With the passage of the 1980 Mandatory Second Payer Act (MSP), CMS was relieved of being the primary health care insurer for Beneficiaries who got hurt on the job. Instead, the WC carrier and/or other contractually obligated insurers would pick up the medical costs tab and relieve CMS of the duty to make those payments.

Modifications to the federal Act became necessary when the recovery times for some Beneficiaries extended for years past the injury date. In WC cases, new federal rules added the "Medicare Set-Aside" (MSA) process. Here, within the original case, the primary insurer became obligated to "set aside" funding to cover the cost of all future medical expenses related to the workplace injury. This relieved CMS from ever having to provide coverage to workers who had primary coverage - for the life of the injury - through their WC carrier.

Georgia Steps Out

In 2013, however, Georgia passed a state law that limits its WC carriers to only 400 weeks of extended support for workplace injuries that occur after July 1st of that year. The only exception to the rule is if the injuries are deemed to be "catastrophic," in which case the 400-week limitation no longer applies.

On its face, the Georgia law appears to be in direct conflict with both the "federal rules are primary" principle, as well as the tenets of the MSP, which:

  • requires all insurers to "consider the interests of the CMS in all cases," and
  • prohibits Medicare from becoming the insurer when there is an appropriate and legal obligation to do so by another carrier.

The 400-Week Rule Raises Questions for MSA Industry

The vast majority of WC cases in any state do not extend to 400 weeks (approximately seven years, eight months), so most Georgia MSAs will not be affected by the GA rule. However, for those cases that do extend beyond that timeframe, the current MSA practice is to fund the account for the life of the Claimant (when medical opinion supports that determination).

The first 400-week termination date will occur in or after February, 2021, 400 weeks after the rule’s July 1, 2014 implementation. In light of the California case decision, the state WC rule raises several questions:

  • Does the rule result in a windfall for WC insurers who no longer must carry the financial obligation for their insureds beyond 400 weeks?
  • Who, if anyone, should assess what resources besides Medicare might be available to injured Beneficiaries after the 400 weeks elapse?
  • What impact has or does the rule have on settlements of WC claims?
  • How does Georgia’s “catastrophic” classification impact the situation? Georgia law defines "catastrophic" injury as "extremely severe, i.e., loss of limbs, severe burns, etc." However, in its FAQ regarding WC injuries, the Georgia State Board of Worker's Compensation declares that loss of a limb is eligible for benefits for only 225 weeks. The opposing statements escalate the confusion for all parties involved in Georgia's WC industry.
  • When tested, will the U.S. Courts follow California’s ruling and allow state law to preempt federal law?

At CompEx MSA, we are always looking out for our clients, no matter the state in which they work. On behalf of our Georgia consumers, we have reached out to Medicare and CMS for further guidance on these perplexing developments, but have not yet had a reply. Going forward, we don't know how CMS and Medicare will respond when the first Georgia eligible Beneficiary passes the 400 weeks and seeks coverage from CMS for work-related injuries. When that happens, we will be the first to report those events.

In a continuing effort to contain costs and remain fiscally responsible, the Centers for Medicare and Medicaid (CMS) is finally addressing inconsistencies in its payment processes based on the underlying nature of its Beneficiary's health care claims. Beginning October 1, 2017, the agency will launch two new set-aside procedures, one for Liability Insurance injury claims and one for No-Fault Insurance injury claims (collectively known as Non-Group Health Plans, or NGHPs). By doing so, CMS intends to reduce or eliminate payments made to Beneficiaries who have other insurance opportunities available to cover the costs of their injuries, regardless of the cause of those injuries.


The changes are in response to a long-awaited General Accounting Office (GAO) report that investigated Medicare program effectiveness in cases where there was also liability or no-fault insurance available. In its Change Request (CR) 9893, the GAO addresses the policies and program updates necessary to create Liability Medicare Set-Asides (LMSAs) and No-Fault Medicare Set Asides (NFMSAs), similar to Workers Compensation MSAs. CR 9893 also instructs Medicare contractors to deny payments when there is an LMSA or NFMSA account available.


Specifics of Denied Codes

After October 1, no Medicare payments will be made for claims related to diagnosis codes connected to an open LMSA or NFMSA. The contractor will use Claim Adjustment Reason Code 201 and Group Code PR. Additionally, the contractor will include the Remittance Advice Remark Codes that are appropriate to the case, such as:

  • N723 - Patient must use Liability Set-Aside funds to pay for a service or item, or
  • N724 - Patient must use No-Fault Set-Aside funds to pay for the service or item


Driven by Economics

After implementation of the rule that all NGHPs report payments made on behalf of injured Medicare beneficiaries, the GAO investigation revealed the workloads of all three CMS contractors grew significantly. During the three years from 2008 to 2011, the number of voluntary NGHP MSP reports rose from 142,000 to approximately 392,000; the number of recovery cases grew from 238,000 to about 480,000, and the number of Medicare Set-Aside proposals went from about 20,000 to about 29,000.


Each of these cases represented a situation where Medicare was asked to or had already covered costs that were or should be the obligations of another insurer. The agency estimates the savings of costs avoided or recovered totaled approximately $124 million over those three years. Because neither Liability insurers nor No-Fault insurers are currently required to establish Set-Asides for the future health care costs of injured Medicare beneficiaries, adding rules that require them to do so would reduce Medicare's obligation to pay for those when the primary insurance runs out.


CMS Follows Through on Previous Comments

In 2016, CMS sent out an Alert that it was contemplating expanding its voluntary MSA review process to include reviews of both NFMSAs and LMSAs. When it issued its Workers Compensation Review Contractor (WCRC) Request for Proposals (RFP), that document included language suggesting that the chosen Contractor would review LMSAs and NFMSAs, as well as its traditional Workers Compensation MSAs. The RFP also indicated that those reviews could begin as early as July 2018.


As of October 2016, CMS was still in the process of developing the guidelines for LMSA and NFMSA arrangements, especially the sub-regulatory guidance principles, although, at that time, it also noted that the guidance would be available "within the next two years." Establishing an LMSA or NFMSA may prove trickier than setting up a WCMSA due to complicating factors such as comparative negligence or apportionment issues; presumably, the guidelines will address these matters.


What does appear certain is that CMS will add fields to its Common Working File to account for LMSAs and NFMSAs by October 1, and that, beyond that date, providers will not be permitted to bill Medicare when the Beneficiary has an LMSA or NFMSA account available.


The GAO report suggests there may be significant financial savings available to CMS if liability and no-fault claims are subject to the same MSA requirements as workers compensations claims. Accordingly, it is more than likely that the agency has just started its process to capture those gains, and that the incoming instructions are just the first step.


The U.S. District Court for the Central District of California (the Court) recently determined that the Centers for Medicaid and Medicare Service (CMS) cannot seek reimbursement from Worker's Compensation (WC) employers or primary insurers for unrelated medical charges when, in a conditional payment case, the health care provider's bill includes codes for medical conditions unrelated to the WC claim. The ruling in the California Insurance Guarantee Association vs. Burwell case gives WC claimants, their employers and their insurers an opportunity to dispute CMS demands for reimbursement for all coded services, regardless of whether they were related to the claim at issue.

The Facts of the Case

The California Insurance Guarantee Association (CIGA) contested CMS's demand for reimbursement for the listed medical charges that appeared on a co-insured's health care bills. A common practice of many medical providers is to add ICD-10 codes to their records for all conditions reported by their patient, regardless of the cause. Over time, when CMS received those records, it sought reimbursement from the WC insurer for all listed codes, including those unrelated to the WC claim and therefore not covered by the WC insurer. The insurer (represented in this case by CIGA) sued to dispute CMS's demand to pay for services not covered by its insurance contract.


The Court Dismisses CMS Defense Arguments

CMS argued four points in its defense, none of which survived judicial review. The Court commented:

  1. CMS withdrawing the demand didn't resolve the issue. CMS did withdraw the reimbursement claim but only after a hearing in which the Court suggested it would likely lose the case if pursued to trial. The Court noted that the withdrawal only stopped the instant case and that CMS would continue the over-reaching practice unless ordered to stop by a judicial decision.
  2. CMS bears the burden to prove the medical codes relate to WC injuries. CIGA had asserted that its identification of the unrelated coding required CMS to prove that those entries were linked to the WC claim. The Court agreed and pointed out that CMS hadn't even challenged the fact that some of the codes were unrelated to the claim.
  3. CMS cannot be reimbursed just for "charges;" reimbursement is available only for services rendered in relation to the WC claim. CMS argued that the Medicare Secondary Payer Act (MSP) permitted reimbursement for whatever charges the provider lumped into its bill. The Court clarified their error on that issue.
  4. Both California state law and its own MSP Manual state that the agency can receive reimbursement only for medical services provided for WC injuries, and not non-work-related conditions. CMS had asserted that federal law preempted state law and that its interpretation of the federal legislation suggests it can recover reimbursements for unrelated charges.


What Happens Next

The lower court opinion isn't a precedent because it wasn't issued by an appellate court. However, it is instructional for both CMS and WC insurers as to how they will do business in the future:

CMS has work to do

The Court determined that just because the task was difficult didn't eliminate the CMS's obligation to separate out covered claims from non-covered claims in its reimbursement demands. Moving forward, the Court indicated that CMS should at least attempt to limit its payment request to only the WC claims, but declined to suggest how the agency would go about doing that.

Upsets Presumptions

The decision also upends two presumptions upon which CMS has relied in pursuit of its reimbursement demands:

  1. CMS presumes that state law does not govern its actions. Not so, said the Court. At least within the conditional payment context, CMS is governed, at least in part, by state law. The Court identified several California cases that bound CMS's insurance-carrier activities and noted that the agency's manual was in accord with those legal restrictions. Ergo, moving forward, relevant state law does play a part in how CMS conducts its federal business.
  2. CMS also argued that state courts should simply defer to CMS's interpretation of federal law. Again, no, said the Court; both state and federal law oppose CMS's position, and deferral of that fact won't occur.

The Burwell decision was released just weeks ago, and, so far, there has been no appeal filed. What CMS elects to in response to the order is unknown. At the very least, the case suggests the agency may face additional litigation challenges by other insurers disputing the agency’s "blanket" reimbursement demands. CMS's own arguments suggest it may contest the Court's requirement that it apportion its claim to include reimbursement for only WC injuries. In any event, the California court has opened an avenue in which Insurers can dispute CMS reimbursement claims that overreach their contractual obligations.