Set Aside Specialists, LLC

Last week someone asked my opionion of yet another MSA training course and a "certification" in MSA preparation.  It wasn't that I didn't think the MSA certification course wasn't comprehensive, or valuable in any way, but I did have reservations.

I personally held off on getting my MSCC certification because I wanted to make sure it meant something.  I took the University of Florida MSA training course 7 or 8 years ago, and could have sat for the certification exam the first year it was offered, about 6 years ago, and I would have been grandfathered in. Meaning, I didn't have to pass the exam.  The exam was in the testing phase.   However, while it might have been an easier process, at the time it was a new certification, and again, I just wanted to make sure that it was something that would be recognized in the industry, and not just more alphabet soup to put behind my name.

For about 4 years, no one seemed to care whether or not I had the certification.  Referrals came in and not a single person asked if I was certified.  But then something changed.  My customers still never asked, but a couple of years ago, I started seeing ads for medicare set aside allocators who were certified. I started seeing more and more posts on professional listserves from individuals with the certification, and in general, over time it became the standard.

What I also started seeing was that individuals who had this certification appeared to be more committed to the industry and to their professions.  Having satisfied my requirement of it "meaning something", I sat for and passed the MSCC certification exam in January of this year.

So does it matter that there's all these various training programs and "certifications".  I think it does.  I think it's fine to have a variety of different training programs, because I personally think that each program varies depending on the perspective of the training organization.  However, as for certification, I think we run the risk of diluting our industry if we support having more than one certification for MSAs. Too many of these courses lead to "certifications", but without really qualifying anyone to sit for the certification.  The MSCC requires that there is a certain level of experience, a profession, and other requirements before you are allowed to sit for the exam.  Many others only require you give money, attend the conference, and sit for the exam. 

So what does this mean for the end user of our servies, our clients?  I think by adding more certifications and more training programs, our clients end up being confused.  Do my clients care where I got my training, I don't know.  Do they know what goes into becoming MSCC certified?  Again, I don't know.  But I do know they expect professionalism, they expect me to be knowledgeable, and they expect great service.  And I expect to deliver just that.  Does MSCC after my name guarantee that? No, but it does convey that I am a professional, with experience, and that I am committed to my profession and to the MSA industry.  Can those new "certifications" coming out say that?  I don't think so.  MSCC is THE standard in the Medicare Set Aside industry, and I think it will continue to be so. 

A couple of weeks ago I had an experience with CMS that illustrates once again why this entire process with CMS can be challenging.

I had completed a MSA on a workers compensation claim on a current beneficiary and had, several weeks prior to the MSA submission to CMS, requested conditional payment information.  Like usual, no response had been received regarding the conditional payments before the MSA was approved.  A couple of weeks after receiving approval on the MSA, I received a call from the MSPRC (Medicare's recovery center for conditional payments), indicating they could not respond to my inquiry as the injury had not been reported to the COBC (the coordination of benefits contractor).

This was a claim that I thought had been reported by the carrier quite some time before.  Regardless, I promptly informed the MSPRC that the COBC is indeed aware of the injury, as I had submitted the MSA to the COBC, and that the COBC had sent me an approval letter.  My response fell on deaf ears.  The MSPRC advised the claim would still need to be formally reported in order to get a conditional payment letter.  That was done at least 2-3 weeks ago, and I'm still waiting for the conditional payment letter, which I may or may not ever receive.

One of the most frustrating issues for carriers is getting the conditional payment issues resolved in a timely fashion. It seems ludicrous to me that the above claim would have had to be formally reported when CMS was already aware of the claim. Even when the claim has been reported, it frequently takes weeks and weeks to get this information. Many times the information comes after the claim has been settled, which creates even more challenges in getting the conditional payment information resolved.

CMS, to their credit, has gone on the record as saying they realize there are issues with getting conditional payment information, and they are implementing new procedures for issuing the conditional payment letters.  I'm hopeful their attempt at streamlining this process is successful, for the sake of all of us.  In the meantime, it's a firm reminder that NO assumptions can be made when dealing with CMS. 

Years ago I used to do workers compensation medical case management.  Like most case managers, I had a few select claimants that were manipulative and a challenge to work with.  I had a term for the process that I used to counteract their behavior:  "creative manipulation". 

I found that I had to be able to predict the claimant's actions, and then be even more creative and even more manipulative than they were.  For example, I frequently attended physician appointments with the claimant, or at least met him or her at the physician's office.  One of the strategies that these select few claimants would do is to show up for their appointment 1-2 hours early, so that when I arrived on time, they would have already been seen and gone.  I would allow that to happen once.  After that, for the following appointments, I would call the physician's office the morning of the appointment and ask that they hold the claimant until I arrived, at the appointment time.  It would infuriate the claimant, but it let them know I was on to them, and it would sometimes stop the offensive behavior. Not always, but sometimes.

As CMS becomes more and more aggressive and difficult to predict, I'm finding that I have to employ a similar "creative manipulation" to MSA's.  Every prescription drug must be evaluated to determine why it's being prescribed. I'm finding that I'm having to look at virtually every line item in the MSA to justify it's appropriateness, and look for documentation to back me up if it's not.

The problem lies when the treatment recommended by the physician is so obviously out of line.  CMS favors the treating physician's recommendations very heavily, even when the treatment recommendations are inappropriate.  This is where I feel "creative manipulation" may have a place. In this case I have to be more creative, and more manipulative than CMS.  I have to try to predict their behavior, and counter with something that heads this off at the pass.  Even then, CMS may not buy it.

MSA vendors that run these MSAs through like a mill, using a cookie cutter approach are probably finding that they are struggling.  I have always felt that every MSA needed an individualized approach, but it's even more important now.  Carriers cannot afford to use MSA vendors who are not proactive and who are not afraid to be bold.  It may very well be that strategies such as "creative manipulation" may be just the start of tools MSA vendors use to accomplish their goals.

One night last week I was watching Forrest Gump for something like the 200th time, and there's a line in the movie that I couldn't help think applied to CMS.  Forrest is telling his story and he says something like:

"Mama always said life is like a box of chocolates; never know what you're gonna get."

Five years ago we could pretty accurately predict what CMS would approve in a workers compensation MSA.  Today though, it's as if CMS is the box of chocolates, and you never know what you're going to get when you ask for MSA approval.

Anyone who's involved in this industry has seen that CMS has taken a very aggressive stance on prescription drug prices, future surgeries, and items like spinal cord stimulators. While it's made it difficult for some adjusters to settle some claims, in at least one way it's been a good thing. It's made us as an industry step up and take a look outside of the box.  It's made us, as professionals, be more creative. We now have more of a duty to educate our clients to help reduce claims costs much earlier in the process. 

It used to be that you would submit a MSA to CMS and it would be approved if it appeared reasonable and matched up fairly well with what the medical records and payment history reflected. They might have added a few PT visits, or something minor, but pretty much you knew it was probably going to be approved as submitted if it was reasonable. That's no longer the case.  In the last two months I've seen both extremes of responses from CMS.  They've added funds to the MSA's I've submitted, and (believe it or not), they've even reduced the amount on one MSA.

Yesterday I saw a post on a listserve that drove home the point to me that no longer can companies afford to use MSA vendors that merely go through the motions or who are not educated or experienced.  Even experienced MSA vendors are having a hard time predicting CMS's behavior, and with significant dollars at stake, it could be an expensive piece of chocolate if you choose someone who doesn't see the big picture. 

Yesterday's listserve post, (though I understand the person was looking for a way to be creative and to reduce costs), was one that conveyed that the individual who posted did not understand how the MSA process works.  It's more than simply projecting future medical costs and getting CMS to sign off on them; vendors must be knowledgeable about how the MSA works from not only the carrier's perspective, but also how they work in real life--from the claimant's perspective. 

Some companies seem to use a cookie cutter approach to MSAs. They make "guarantees" in terms of approval rates, reduced fees, turn around time, etc., which all sound good on the surface.  Smart companies are starting to see though that MSAs need to be addressed individually and they are wise to opt for vendors that can provide very comprehensive and individualized service, otherwise the savings they see through reduced fees, etc., will result in higher costs in the long run, making that a very expensive piece of chocolate indeed!

It occurred to me this week while spending hours at Boston Logan Airport, that CMS is much like the airlines. Here's why:

1. They both think you should know all the rules, and they both give you a hard time when you don't.  Why is it that neither CMS nor the airlines make it easy to find the rules that we're supposed to play by? And why is it that they both give you a hard time when you don't know something they think you should?  Were we born with this information?  I don't know about you, but I wasn't.  When you ask either the airlines or CMS where to find these "rules", they both will refer you to their own websites, and neither the CMS nor the airline websites make it easy to find the information you need.  It seems I spend hours upon hours on both CMS and airline web pages looking for the simplest of things. Does it really have to be this difficult?
2. They both run on their own sense of time. The airlines play this game with their ontime rates.  CMS does it with their review rates.  The airlines will tell you that they are "on time" 85% or 95%, or whatever, when really you may either take off or land on time, but spend another 10-30 minutes on the plane because the ground crew isn't ready, or there's too many planes lined up to take off.  CMS says they can review most MSAs in 45 days, but the clock doesn't really start ticking when they receive the MSA, it starts ticking once it's forwarded to the reviewer, so the turn around time is really longer.
3. They both have silly rules about what you can and cannot do.  I understand the need to keep things secure, standardized, and organized, but really...At one point on my travels this week a airline ticket agent nearly tackled a passenger trying to take a photo of her son in the airport check in line. Since when does the airline have control over when we can photograph our family members?  CMS says you can't call to check on the status of a MSA until 45 days from the date on their confirmation letter (which may be dated 2 weeks after you submitted the MSA), but even if you wait until the suppposed 45 days, most of the time you will be told "it's still in review".  That doesn't tell me anything. I literally had a MSA that CMS was doing nothing on because they couldn't read one page in one of the files.  It would have been nice if they would have called and asked me to fax that one page rather than literally letting it sit for 45 days with no activity.

I could go on and on, but I think you get the point.  The larger airlines and CMS are both bureaucracies that could learn alot from small businesses. Most small businesses that thrive do so because they understand that you get more accomplished by treating your customers well, understanding their needs, meeting those needs, and by just generally being nice. It should be clear who the customer is for the airlines, but maybe that's it.  Maybe it's a customer service issue with CMS. Maybe CMS doesn't realize who their customer is.  If you ask them, they would likely say that their customer is the Medicare beneficiary. And that's true.  But I'd also argue that their customer is also the insurance carriers they demand information from. At least if they looked at the carriers from the perspective of a potential customer, things might improve, on both sides.  Ah, if only....

I think CMS was right when they chose to include prescription drugs in Medicare Set Asides, and I also agree that there needed to be some direction as to how these drugs should be forecasted.  Before CMS outlined how future prescription drug costs were to be forecasted, MSA vendors were all over the place with how they forecasted.  Some only forecasted a few years, some used donut holes, some used discount drug prices, etc.  But, (you knew it was coming), even though I agree some guidance was needed, it appears to have gone too far.

Just because someone has taken it for a couple of years, is it really reasonable to assume that someone with a 30 year life expectancy is going to take 120 hydrocodone/APAP tablets a month, every month, for the rest of their lives?  I mean, let's think about that.  That means over the span of that person's life, he'd take 43,200 hydrocodone/APAP tablets. Can a liver really tolerate that much acetaminophen?  I don't think so, and that's just one drug. Many MSA's have lifelong prescriptions forecasted for multiple drugs.

I guess my beef with the entire process, is that CMS does not take into consideration current published medical literature that documents how incredibly unsafe and unwise it is to take certain drugs long term, i.e. opiates.  Not only is it unreasonable to assume someone's going to continue taking these medications lifelong, it's irresponsible to forecast them that long. Sure, there are some medications for some injuries, that require lifelong medications. For example, lifelong prescriptions for bladder medications in a spinal cord injured person, or anti-seizure medications for head injured persons.  But the vast majority of MSA's are done for non-catastrophic injuries.

I'm not saying that there aren't people out there that don't need chronic pain medications long term. There are.  However, CMS has taken the stance that all medications are to be forecasted lifelong unless there is medical documentation to the contrary.  Why is it we have to assume they will be required lifelong? Can we not assume that people will get better with time and will require less medications instead of the same or more?  There needs to be a mechanism in place where certain drugs that are known to be hazardous in either large quantities, or for long periods of time, can be forecasted for a short period of time, say five years or so, to allow the individual to adjust to their injury, but not take the drug to the point that it starts causing serious medical complications.

I understand the need to protect Medicare's interests, but at what expense?  I think CMS needs to revisit this policy.