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New Contractor, Opioid Issues on Horizon for MSAs in New Year

By Elaine Goodman (medical/business Reporter)

Tuesday, January 2, 2018 | 842 | 0 | 780 min read

Reducing opioid allocations in workers’ compensation settlements will remain a focus in the new year for those who work on Medicare set-asides, despite what some called a disappointing federal response last month on the issue of opioids and MSAs.

Heather Schwartz Sanderson

Heather Schwartz Sanderson

Other developments on the horizon for Medicare set-asides include the arrival of a new Workers’ Compensation Review Contractor and the Centers for Medicare and Medicaid Services’ expected foray into MSAs for liability cases.

“It will be interesting to see how the new contractor is,” said Heather Schwartz Sanderson, chief legal officer for Franco Signor. “Will we see a delay in turnaround times? Will the new contractor be more or less strict in its application of the WCMSA Reference Guide? This all remains to be seen in 2018.”

CMS in September announced it awarded the work comp review contract to Capitol Bridge LLC of Arlington, Virginia, which will replace Provider Resources Inc. of Erie, Pennsylvania. Protests of the award by two other companies that participated in the bidding process were denied last month. The time frame for Capitol Bridge to take over as WCRC was not immediately known.

Jean Goldstein, legal and corporate affairs manager for Medval, said CMS has signaled its interest in moving forward with a Medicare set-aside process for liability and no-fault insurance cases. In an October notice, CMS said it would work closely with stakeholders to determine how best to implement the potential expansion of voluntary MSA reviews.

Review of the liability and no-fault MSAs would also be handled by the new WCRC, which could have an indirect impact on review of workers’ comp set-asides.

“It’s possible the new contractor will be inundated,” Goldstein said.

Another “hot topic” for the new year will be opioid allocations in MSAs, Goldstein said.

Allocation of large amounts of opioids in Medicare set-aside arrangements has been an ongoing concern for MSA consultants. The National Alliance of Medicare Set-Aside Professionals in 2016 proposed what it calls evidence-based limits on opioids in workers’ comp Medicare set-asides. NAMSAP has been pitching its proposal to federal officials.

The issue received renewed attention in October. The California Workers’ Compensation Institute released a report that found the average length of opioid prescriptions was 20.9 years in California workers’ comp Medicare set-aside plans that CMS approved in 2015 and 2016. The approved set-asides included an average daily dose equivalent to 54.7 milligrams of morphine, exceeding the recommendations of both the Division of Workers’ Compensation and the U.S. Centers for Disease Control and Prevention.

And 69.4% of the nearly 8,000 approved set-asides CWCI reviewed included some allocation for opioids.

CMS appeared to respond to the CWCI report in a Dec. 14 notice, in which the agency said it “understands the concerns” regarding the opioid crisis in the U.S.

“We are committed to ensuring the determination of workers’ compensation Medicare set-aside arrangement amounts are an adequate projection of claimants' needs for future medical services and prescription drugs,” the agency said. “CMS continually evaluates all policies and procedures related to WCMSA amounts. Any changes that Medicare pursues related to this issue will be reflected in our WCMSA amount review process.”

Some were hoping CMS would announce specific action on the issue of opioids in MSAs, rather than making general comments.

“It was a very vanilla type statement,” said Rafael Gonzalez, president of Flagship Services Group. “It was really, really disappointing.”

But NAMSAP representatives remained optimistic.

“We do believe that we are going to see changes,” said Rita Wilson, chief executive officer of Tower MSA partners and a member of the NAMSAP board of directors.

Amy Bilton and Gary Patureau, co-chairs of NAMSAP’s Evidence-Based Medicine Committee, met with CMS officials on Dec. 11 to discuss opioids in MSAs. They were joined by a staff member for U.S. Sen. Bill Cassidy, R-Louisiana, who has taken an interest in the issue.

NAMSAP said that workers’ comp MSAs overfund beneficiaries’ anticipated future medical needs because the opioids are priced in dosages that were never meant to be taken over life expectancy, in effect sanctioning harmful, long-term opioid use.

The NAMSAP committee recommended that CMS incorporate evidence-based guidelines into its MSA Reference Guide, such as the Centers for Disease Control and Prevention guidelines for tapering beneficiaries from long-term opioids at a rate of 10% per week.

Another concern expressed by NAMSAP is that the MSA funds are given to the beneficiary directly without a gatekeeper to oversee the post-settlement opioid use, a concern echoed by Daniel Anders, chief compliance officer at Tower MSA Partners.

“There is nothing to stop a claimant from converting funds allocated to a surgery to pay for medications, including opioids,” Anders wrote in a blog post last week.

Anders predicted that the progress in reducing opioids will come less from CMS “and more from the increasing recognition of the harmful effects of long-term opioid use.”

“For years now, whether it is an opioid or any other medication which may be harmful with long-term use, CMS expects any tapering or weaning of such medication to occur prior to submission (of a Medicare set-aside proposal),” Anders told WorkCompCentral. “And frankly, in most cases, this makes sense. … It takes treating physician involvement to limit or eliminate these harmful medications.”

Gonzalez with Flagship Services noted that parties involved in a settlement now have an avenue to revisit an MSA that includes a large allocation for opioids. CMS in July introduced a “re-review” option in July in its Workers’ Compensation Medicare Set-Aside Portal User Guide.

An amended review is now available when a case has not yet settled and the submitter believes “projected care has changed so much that the new amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount,” the agency said. The amended review is an option if it has been more than one year but less than four years from when the Medicare set-aside was originally submitted.

“It has given us a window,” Gonzalez said. Evidence of the change in projected care needs to be provided, he added, such as documentation from a physician.

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