Russell's photoI was pleased to attend the Seventh Annual Meeting and Educational Conference of the National Alliance of Medicare Set Aside Professionals (NAMSAP) in New Orleans, Louisiana on September 28 and 29, 2011. Despite a number of excellent presentations, the highlight of the conference was the participation of William Decker and Frank Johnson, of the Centers for Medicare and Medicaid Services (CMS). Mr. Decker is currently a Senior Health Insurance Analyst and Business Function Lead for CMS while Mr. Johnson is a Health Care Specialist who is responsible for developing policy and operational procedures for Workers’ Compensation Medicare Set-Aside Arrangements.

Commentary from CMS Representatives

Unfortunately, neither Decker nor Johnson could attend the conference in person; however, both joined by speaker phone. Prior to the call, NAMSAP had provided them with a detailed list of questions on topics including the new Workers’ Compensation Review Contractor’s (WCRC’s) status, Medicare Part D review criteria, Mandatory Insurer Reporting (MIR) and liability MSAs. They entertained questions from the attendees as well.

Johnson and Decker advised that, because of the nature of the relationship between CMS and its contractors, they were not able to address many of the questions posed. They could not comment on the status of the WCRC contract, the conditional payment process or any pending CMS policy changes. However, they were quite forthcoming with their thoughts on a number of issues which provided insight into the CMS mind set and gave clues about potential changes to come.

Regarding Mandatory Insurer Reporting, Mr. Decker reported that there were approximately 20,800 Responsible Reporting Entities (RREs) that were actively reporting Non Group Health Plan claims to CMS. That number was expected to grow sharply in the coming months. He reported that the biggest challenge to CMS in the MIR arena was liability settlements or Total Payment Obligation to the Claimant (TPOC). It would appear that a large hurdle to the process is encountered in properly identifying what constitutes TPOC and by whom it should be reported. Thus, as has been widely speculated, CMS has been struggling with the realities of liability insurance, how it operates, how it is paid, and how to try to fit those facts into the no-fault and workers’ compensation models. Significantly, the pair reported that they were unaware of any delay in Mandatory Insurer Reporting and expected to proceed with the planned receipt of data on all claims, including liability claims without the acceptance of Ongoing Responsibility for Medical (ORM) as of January 1, 2012. On the whole, Mr. Decker found the insurance industry to have been “very cooperative” in Section 111 Reporting.

When asked about the current WCRC backlog and turnaround times, the men dispelled the rumor that the WCRC is simply overwhelmed, overworked, and under staffed. Rather, the current backlog is a function of technical difficulties and, what sounded like bad luck. According to Mr. Johnson, CMS decided to install an Enhanced WCRC Control System which, after implementation, encountered problems and had to be removed. Difficulties with T1 lines were encountered (one T1 line for all data received) and most importantly, CMS changed telephone providers from AT&T to Verizon. Additionally, continued technical enhancements to the Electronic Workers’ Compensation Portal caused workflow problems. Currently, CMS has authorized staff overtime to resolve the backlog problem and hope to have the electronic portal completed by the end of October, 2011. He indicated that the WCRC received an increase in reviews from 700 to 2400 cases per month since the previous WCRC contract was implemented. The new contract statement of work requires that the new vendor review 2000-2500 MSAs per month with capacity for 8% re-review of allocations. No time frame was identified regarding the resolution of the backlog.

Perhaps the most interesting portion of the discussion for the allocator attendees centered around Mr. Johnson’s statements regarding CMS’ policies when reviewing medical records and documentation in the MSA process. Mr. Johnson identified the CMS “hierarchy” with regard to physicians. The treating physician’s findings were entitled to the most deference followed by those of a State Court ordered or compulsory Examiner and then, an Agreed Medical Examiner. A Qualified Medical Examiner and the findings of an Independent Medical Examiner were identified as less persuasive but were considered within the hierarchy.

There was no resolution to the Mass tort Mandatory Insurer Reporting problem, although the men advised that the issue is being reviewed and a solution is expected by year’s end. Mr. Johnson also denied that CMS and the WCRC are inconsistent in their review practices. Further, he could give no guidance on whether a policy memo or other position statement was forthcoming regarding the use of MSAs in liability cases. The pair agreed to answer any written questions submitted by the NAMSAP membership as well.

Steps in the Right Direction

The participation of Mr. Decker and Mr. Johnson was a small first step in creating a meaningful discourse with CMS regarding the frustrations and difficulties encountered by the MSA industry and tort litigants. While the answers to most questions were met with “We’ll get back to you on that,” the discussion did provide hopeful signs that the CMS technological house may be getting cleaned up and the interminable delays in the review process may be reduced. Thanks must be offered to Gary Patureau of the Louisiana Association of Self Insured Employers (LASIE) for orchestrating CMS’ participation and for chairing an excellent conference as well as to the NAMSAP Board of Directors. As usual, we will await the CMS response to industry concerns as we move forward to what promises to be a very eventful 2012.


About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.