Greg Gitter Offers Thoughts on CMS Re-Review Policy

Our very own Greg Gitter was recently interviewed as part of an article by our good friends at WorkCompCentral regarding some of the positive and negative effects of the Medicare Set Aside (MSA) re-review policy set forth by the Centers for Medicare and Medicaid Services two years ago.

 In 2017, CMS opened the door for a one-time re-review of an MSA provided the revised approval would result in a change to the MSA of at least 10% or $10,000, whichever was greater. Prior to this policy, CMS would only review and approve an MSA one time which could often leave settlement parties with no recourse if the approved MSA figure did not line up with the terms of their agreement.  In those instances, a decision was typically made to leave the file open and no longer pursue a settlement.  

 This policy change has been met with mixed results from our vantage point here at Legacy Claim Solutions. We often see instances where there have been drastic changes in treatment and medications subsequent to a CMS approval.  Previously those changes were irrelevant as the CMS approval was set in stone, however there is now an opportunity to position a file for a re-review which can re-open the door to negotiations and settlements, and we have had success with this process.  However, as the article states, parties must keep in mind the timeframe allowed for the one-time re-review.  In addition to the dollar or percentage requirement, an existing MSA approval must be between 12 and 48 months old to qualify.  Unfortunately, this stipulation eliminates many older files from the re-review consideration even though the treatment has changed dramatically.  We would like to see the timeframe requirement expanded to give these older MSAs an opportunity to be updated with current medical and prescription needs.  This would undoubtedly open the door to settlements on older cases that had been written off years ago.

 Overall, however, this has been a welcome change to the stale review policy that had been in place for years.  It is evident that CMS wants to work with the settlement community to improve the Medicare Secondary Payer compliance system when changes are needed.  We applaud the National Alliance of Medicare Set Aside Professionals (NAMSAP) for continuing their efforts to serve as the voice of the MSA industry.

 Please click here to visit our friends at workcompcentral.

Survey Lists Top 10 Challenges Facing Workers' Compensation in 2019

Our friends at Risk & Insurance recently published an article showing the results of a survey they conducted at the 2018 National Workers’ Compensation and Disability Expo in Las Vegas, NV, in which the respondents revealed what they felt would be their top 10 challenges for 2019.  The article summarized the responses of 512 attendees, most of which were claims managers and risk managers.  You can click here to link directly to their article, but we felt there were a couple of noteworthy issues to mention in our blog.

The two issues we found most compelling were the Growth of Complex Claims coming in at #5, and Cumulative Trauma (CT) claims coming in at #9.  These two resonated with us as we often encounter these types of files through our core service offering of helping clients settle their legacy claims, or old dog files.  Both types of claims, in our experience, must be given special attention to prevent them from spiraling out of control leading to increased costs and complexities.

As noted in the article, a complex claim does not always start that way.  A variety of factors including atypical recovery time, heavy prescription medication use, implanted devices, and psychological developments can all indicate that a particular file may be going down the “legacy path”.  They evolve over time due to a variety of factors and quickly reach “complex” status when left unchecked.  Our file reviews with clients often indicate that a relatively small portion of claims in a workers’ compensation program are classified as legacy claims, but those few claims represent a large portion of the cost associated with the overall program, so it is imperative to identify trends and make accommodations for amicable settlement discussions.

CT claims, or claims involving an injury resulting from repetitive trauma over a period of time, achieve “legacy status” simply by the amount of time they tend to persist. While the costs associated with CT claims are not always significantly higher than those of a typical workers’ compensation claim on an annual basis, the duration of time from injury to settlement is usually much higher.  CT claims, as the article states, often last a decade or more.  As with any legacy claim, approaches to settlement of these claims does not always follow a traditional path, so proper consideration must be given to a settlement negotiation.  

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB), recently released a report on CT trends in California which we found particularly interesting, and this report can be viewed by clicking here.

Reversal of Medical Director’s Approval in Louisiana

We recently received a letter from an attorney colleague of ours in Louisiana, Wayne Fontana with Roedel Parsons Koch Blache Balhoff & McCollister, informing us he recently received a judgement out of District 07 which overturned a medical director’s decision approving a $40,000 knee surgery.  Of note, the trial judge “specifically determined that the knee surgery was not in accordance with the medical treatment schedule and thereby overturned the medical director’s approval.”  It has historically been very difficult, if not impossible, to overturn the opinions of medical directors in Louisiana.  This has resulted, in our opinion, in inflated costs of future medical care as unapproved and unnecessary care has to be accounted for at the settlement of a workers’ compensation claim.  Once improper decisions are rendered by a medical director, decisions are typically made to not approach a settlement due to the increased cost to do so. Hello legacy claim.

This reversal is noteworthy as it could open the door for an increased number of successful, and medically appropriate, appeals.  Mr. Fontana said to us via email, “The more people who know that this medical director should be challenged and that, with the right case, his rubber stamp approvals can be reversed, the better.”  To our Louisiana clients, it would be a good idea to review prior unfavorable decisions from medical directors and investigate whether or not you might have a case for a successful appeal.

To view the letter from Mr. Fontana, please click here.