On October 1, 2017, the Centers for Medicare and Medicaid Services (CMS) was scheduled to stop paying for health care services that should, instead, be covered by parties deemed responsible for those damages pursuant to liability and no-fault insurance cases. In early 2017, the agency had announced that Medicare-beneficiary claimants in both liability and no-fault legal cases should consider adding a Medicare Set Aside account term to their settlement negotiations, to ensure adequate protection for Medicare if/when those injuries require long-term care services. At the same time, CMS asserted that it would establish two new processes for Liability Medicare Set-Asides (LMSA's) and No-Fault Medicare Set-Asides (NFMSA's), each of which would trigger use of a new code - N723 for LMSA cases, and N724 for NFMSA's - when the agency rejects requests for payment due to the existence of the alternative payor funding. Now that the October 1 date has passed, what has changed, if anything, in the MSA administration world, as it relates to LMSA's and NFMSA's? Let's just say it's been a bumpy Autumn.

New Contractor; New Challenges

The addition of LMSA's and NFMSA's to the already busy CMS reimbursement system has been made more challenging by the September 1, 2017, entry into that system of a new Workers’ Compensation Review Contractor (WCRC), Capital Bridges, LLC. The contract title notwithstanding, the new administrative entity will be responsible for managing all of the LMSA and NFMSA cases, as well as the Workers’ Compensation cases already on its agenda.

Under optimal circumstances, a new contractor in such a complex field will face many challenges with which it may have little or no experience. In this case, unexpected events have delayed the commencement of the contract, which has delayed any forward movement on the LMSA and NFMSA front as well:

• Shortly after CMS awarded the WCRC contract, two other corporate candidates filed protests with CMS about that appointment. Arch Systems Inc. and KEN Consulting, Inc. each filed a complaint with CMS protesting the award to Capitol Bridge, which caused a stop-work order preventing Capitol from beginning work. It was only this past week, on December 13, that the General Accounting Office (GAO) denied the protests, thereby allowing Capitol to (finally) get to work on its reviews of the Workers Compensation cases.
• Despite promises contained within a September 19, 2017, article to offer guidance and support for LMSA and NFMSA claimants, on October 3, 2017, CMS rescinded those comments. The September 19 article addressed how health care providers should manage those cases where their patients have a WCMSA, LMSA, or NFMSA. Despite the gap, CMS has not offered any guidance on the subject after the October 3 date.
• Further, despite its promises to provide more comprehensive instructions for LMSAs and NFMSAs, as well as its assertion that it will stop paying for care in cases that should have an LMSA or NFMSA, the agency remains quiet about the processes or structure of its potential LMSA and NFMSA policies, leaving claimants, insurers, employers, and settlement agencies in the dark about their next steps.

Prognosticating the Future

So, as Winter 2017 begins, we still don't know what CMS is going to do about the management of LMSA's or NFMSA's. It appears likely that the agency will include both liability and no-fault carriers as alternative payors and reject claims for which those entities have the obligation to pay for healthcare services. It also appears likely that the new WCRC will be the entity that that reviews proposed LMSA's and NFMSA's, although the processes to get the case in front of it aren't yet known. Not surprisingly, our clients are understandably nervous about what the incoming changes at CMS and in the MSA system will mean for them moving forward.

So, here at CompEx MSA, we have determined that our best practices and next steps will be to ensure that our clients continue to receive the best possible service for all their MSA needs. In addition to keeping our clients and customers informed about the ongoing drama at the CMS, we will also continue to evolve our practices to conform to industry changes:

• Since WCMSA's are voluntary, we believe that LMSA's and NFMSA's will also be voluntary. Therefore, we will apply WCMSA best practice protocols to incoming cases with an LMSA or NFMSA potential.
• As each case comes in, it will be vetted for CMS interests that might trigger the possibility of the development of an MSA, regardless of whether it is a worker’s compensation, liability, or no-fault case.
• As always, we will complete an exhaustive medical-legal evaluation of each claim, adding now the possible ramifications of the varying legal obligations that might arise in each party to the case, including insurance policy limits, negligence rules, and applicable statutory and case law.
• When necessary or appropriate, we will also evaluate liability or no-fault cases to identify next steps in cases of insufficient funds on the part of the liable parties.

CompEx MSA is Here to Help

As one of Florida's certified minority-owned businesses, CompEx MSA is proud of its reputation for providing high-quality MSA services to both state- and nationally-based customers. We value all our clients equally and are looking forward to serving their MSA needs in future workers’ compensation, liability, or no-fault cases, regardless of how CMS elects to move forward with those processes.