The Conundrum of Medicare Set Asides: A Case Study

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Medicare Set Asides

Last month we talked about CMS’ new Section 4.3 of the WCMSA Reference Guide, entitled “The Use of Non-CMS-Approved Products to Address Future Medical Care.” Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.5, January 10, 2022). Since the release of our blog, The National MSP Network hosted a Webinar on February 16, 2022, entitled “CMS Clarification on Non-Submit: What You Should Know” . The following day, CMS held a WCMSA Webinar, addressing this topic, the transcript remains pending, but we will share it with you upon availability.

Care Bridge International Case Study, Discussion and Recommendations:

CMS “Non-Submit MSAs” in the Non-Group Health Plan (NGHP) industry, have accelerated in use over the past few years as an option to reduce friction in the cumbersome MSA process and as an alternative to grossly over-funded MSA submissions. Non-submit MSAs offer an alternative to protect Medicare’s interests, but, if not reviewed and approved by CMS with the relevant final settlement documents these MSAs cannot be tagged in the CMS Common Working File to data match for MSP purposes. These MSAs cannot be identified and cross-matched to provider invoices and are invisible to CMS.

After 10 years of research and development, Care Bridge International offers the only actuary endorsed predictive model to forecast medical treatment and costs for claims. Our clinical experts use enhanced AI to forecast care at a higher degree of accuracy than conventional methods. Our results are statistically valid and reliable, and our customers can monitor compliance with an Analytic-Powered MSP KPI Dashboard.

The Analytic-Powered MSA is used as a valid option for a Non-Submit MSA for claims which do not meet the CMS Review Threshold for review. Our MSAPro can be paired with a ClaimMap that pinpoints what is driving claim costs and actions that can be taken to mitigate future medical exposure. Our results are based in data science and are reproducible and statistically valid and reliable. Both our MSAPro and Analytic-Powered MSAs are approved each year with the submitted annual attestation forms, post settlement, by CMS.

Best Practices for Submit vs. Non-Submit Medicare Set Asides:

Claimants with complex, catastrophic injuries such as spinal cord injury, head trauma, amputees, extensive burn injuries, and multiple traumas may become eligible for both Medicare and Medicaid, and these claims should be submitted to CMS for review and approval due to the long-term care they will require. Total settlements which do not meet the CMS review threshold for MSAs will still need to ensure that Medicare’s interests are protected, but Medicare will not review these MSAs, hence, a Non-Submit MSA is perfectly appropriate.

Depending on the merits of a claim, or state rules/ regulations, judges’ rulings, etc., the parties may exercise a cost benefit and/ or legal analysis to determine available options to protect Medicare’s interests, and careful documentation to include Medicare’s interests in settlement language is important.

Additional care must be taken to ensure that support is provided to Medicare Beneficiaries post settlement to be successful with the proper distribution of MSA funds to secure a proper and final exhaustion that is acceptable to Medicare. Post Settlement support and custodial programs are available to assist beneficiaries, including the responsibility of an annual attestation. At Care Bridge International, we encourage a post settlement support for the claimant to assist with a proper exhaustion of the MSA whether the MSA is submitted to CMS for review and approval or not. To do so demonstrates good faith in protecting Medicare and the Beneficiary from potential, albeit unintended harm.

Your first line of defense to mitigate MSA exposure is Proper Medical Management.

Claims which are inadequately managed are those that lead to costly, over-funded MSAs. At Care Bridge International, our ClaimMAP provides a focused, actionable approach to improve claim outcomes and mitigate exposure, before finalizing your settlement and incurring unnecessary medical costs. The earlier the intervention, the better your results will be.

We recommend that companies begin with establishing a proper medical reserve with a focus on medical management and early identification of Medicare risk and exposure. A proactive approach will yield a 40%-70% savings or more in claim costs!

Case Study:

A 46-year-old male with a medium job was diagnosed with a work-related migraine headache and torticollis. According to ODG duration guidelines, it was expected this claimant would be out of work for 12 days. If claimant had undergone surgical intervention, out of work an additional 28 days for a total of 40 days.

ODG Medical Reserve Costs:

Best Practice (Best case scenario) $2,816.00

Medical Claim Typical (Average):  $6,547.00

Medical Claim Maximum Expected: $10,191.00

This claimant remained out of work six years, at the time of settlement, with a total medical paid of $233,000.00, far more than expected compared to similar claims.

At Care Bridge International we were asked to provide a WCMSA and using our AI enhanced insights, forecasted a MSA of $130,000. CMS approved $199,000, but following a request for re-review, CMS approved $167,000 as a final total MSA to protect Medicare’s interests. For comparison, a recognized, national MSA vendor provided a MSA on the same claim and the total MSA Amount exceeded $500,000, a 67% over-payment!

Unfortunately, it is commonplace to see these over-funded vendor allocations. Given our proven experience and reliable outcomes since 2015, Care Bridge International offers the most accurate forecast in the industry, defending its MSAs, backed by data science.

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