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July 2016 Newsletter
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NAMSAP Quarterly Newsletter 
Volume 9, Number 3
          July 2016
By: Gary Patureau, CWCP, CMSP
Executive Director/COO  Louisiana Association of Self-Insured Employers

This has been an extremely busy year as NAMSAP moves forward with “all possible energy and determination.” Our Board and committee chairs are working tirelessly to meet the goals set forth in our strategic plan. I trust that the articles and committee updates in this edition of the NAMSAP Advisor will update you on our Alliance's activities. NAMSAP is stepping up its leadership role within the MSP/MSA industry, working with national stakeholders to ensure that our members are not only represented, but a part of the evolutionary process that is underway.

NAMSAP has strong momentum and we ask all members to become involved. There is something for everyone at NAMSAP. If you are not serving on a committee, we welcome you to join and contribute your talents. All of our committees are extremely active and seek new energy and ideas. Their work is setting the stage for the future of MSP compliance. Our webinars are top notch and the 2016 Annual Meeting and Education Conference is sure to be outstanding. The agenda and speakers are certainly noteworthy. As always, the listserv provides a tremendous resource for industry dialogue and education.

On June 20 and 21, Amy Bilton and Rasa Fumagalli and I traveled to Washington, DC and Baltimore, MD, to not only meet with a diverse group of public policy leaders in the fight to promote an evidence-based approach to stemming opioid use in the MSA, but to establish a coordinated approach with key federal agencies in an effort to expedite a solution. As you will read, we are optimistic that we established new allies in our battle to stop opioid overuse. NAMSAP will continue its collaborative effort in the coming months through meetings, Part III of the "Opioids in the Life of an MSA" webinar series this August and the upcoming Annual Meeting and Educational Conference.

Rear Admiral Pamela Schweitzer, US Assistant Surgeon General and Chief Pharmacy Officer, gave us an overview of the new “Turn the Tide RX” campaign that is a key initiative of the Surgeon General, Dr. Vivek Murthy. This campaign and subsequent nationwide tour by Dr. Murthy is focused on changing providers’ prescribing patterns. Many within our membership have seen firsthand the rise of opioid prescribing. Hopefully we will soon see its demise.

In addition to our meeting with Rear Admiral Schweitzer, we had a productive meeting with Steve Forry, Director of MSP Program Operations at CMS, and his divsion staff. As I stated earlier, MSP compliance is evolving through both regulatory and legislative processes. We are eager to continue to work with CMS as they contemplate changes.

On another positive note, I am pleased to announce that NAMSAP has completed an agreement with Truven Health Analytics to offer RED BOOK™, an informational resource of the latest in drug products and pricing, at a discounted rate to our members.

Lastly, I hope you will all sign up for this year’s Annual Meeting and Educational Conference in San Antonio, Texas, it will be our best yet and you won’t want to miss it! I look forward to seeing you there!

By: Amy Bilton, Esq.
Shareholder,  Nyhan, Bambrick, Kinzie & Lowry

On June 20 and June 21, 2016, our fearless president, Gary Patureau, along with attorneys Amy Bilton and Rasa Fumagalli, had the opportunity to meet various governmental players to address the opioid epidemic being perpetuated in the MSA. The first meeting was with Sarah Wattenberg, Senior Advisor for Drug Policy for the U.S. Department Health and Human Services and Detail Lead to the Office of National Drug Control Policy; Deputy General Counsel of the ONDCP, Michael Passante; and senior (insert title here) Kristina West, also on loan from HHS. The purpose of this meeting was to detail the MSA process and bring CMS’ current opioid pricing policy into light, and contrary to the Administration’s goals relative to opioids. The office was supportive of our cause, and agreed to follow up with us after our discussions with CMS later that day.

The second meeting was with: Steve Forry, Director of Medicare Secondary Payer Program Operations for CMS; Suzanne Mattes, Deputy Director of Medicare Secondary Payer Operations for CMS; John Jenkins, Jr., Health Insurance Specialist for the Division of Medicare Secondary Payer Operations at CMS; and Frank Johnson. Each of the attendees agreed that long-term utilization of opioids at high dosages is contrary to current evidence-based medicine studies, and expressed an interest in finding a solution to this issue within the MSA.

The exchange that ensued was spirited, passionate and productive. CMS raised concerns about preservation of the Medicare Trust Fund, with their main goal being to ensure no burden shifting occurs. CMS took the position that the current procedures pertaining to projecting MSA costs for long-term opioid users does not require the funds be used only for opioids; the pricing is only a number which can be used to cover alternative treatment when the care ultimately moves away from opioids. CMS representatives also raised that even the current policy outlined in the Reference Guide for tapering/weaning opioids risks that the Medicare Trust Fund could pay for opioids should the beneficiary later revert back to opioid use. This, they expressed, provided a happy medium between quality patient care and protection of the Medicare Trust Fund. Even given all this, the Division acknowledged that opioids are a problem nationwide, and was open to discussing alternative handling of allocations for opioids.

President Patureau reiterated the NAMSAP call for a cap on opioids in the MSA. Concerns raised by CMS were of a hardline rule that would not take into account patient safety/outcome, and concern that such a cap would not be in line with post-settlement utilization. After an exchange of discussions about post-weaning treatment protocol, possible options, state law coverage issues, Medicare coverage issues, Part D Plan call letters and directives, all of the parties acknowledged the positive nature of the exchange of information and agreed to think through the respective points made and re-group in several weeks with an eye toward addressing the opioid issue in the MSA. The meeting was very productive, and we applaud CMS for its agreement to listen to and consider NAMSAP’s perspectives and concerns.

Tuesday, June 21, was another whirlwind day, beginning with a meeting with Brenda Dastro, Senator Bill Cassidy’s senior health policy advisor. The purpose of the meeting was to make their office aware of the issue and garner support. Senator Cassidy’s staff agreed that opioid abuse is a priority and agreed that NAMSAP’s good quality patient care goal was laudable.

The final meeting of the trip was with Rear Admiral Pamela Schweitzer, Chief Pharmacist Officer for the United States Public Health Service, Assistant Surgeon General and leader in the area of coordination of pharmacy programs with various governmental agencies, including CMS. Rear Admiral Schweitzer showed tremendous support for NAMSAP effort, and explained how NAMSAP’s goals directly tie in with the Surgeon General’s current efforts to combat the opioid epidemic on both the prescriber and patient sides. She agreed to assist NAMSAP with its goal, and we look forward to partnering with her. Keep an eye out for the Surgeon General’s “Turn the Tide” tweets and initiatives. The initiative is groundbreaking and fascinating, and we encourage all NAMSAP members to participate in this initiative in whatever way they can.

NAMSAP will continue actively work with the Division and other interested parties, to bring regulatory change on the handling of opioids in the MSA. NAMSAP will continue to forge ahead to find an eventual outcome that is more in line with state limits, Medicare coverage limits, quality patient care and the preservation of life. We commit to continued prioritization of this cause for the good of our country, and for the good of the families directly impacted by opioid abuse.

By: Rasa Fumagalli, JD, MSCC
      Director of Compliance, NuQuest
NAMSAP presented the second of its three part webinar series on "Opioids in the Life of an MSA" on June 21, 2016. The first part of the series was presented in 2015, and focused on the opioid epidemic from the physicians' perspective. The second part of the series examined the application of the nation's current guidelines involving the use of opioids for the management of chronic non-cancerous pain, with a call to action by the US Assistant Surgeon General, Rear Admiral Pamela Schweitzer.

The webinar was arranged by the Evidence-based Medicine Committee (EBM) co-chairs, Gary Patureau and Amy Bilton. It was moderated within CMS' offices, at the end of two days of meetings with various parties interested in addressing the opioid epidemic. For additional details regarding these meetings, please refer to Amy Bilton's articlelater in this newsletter.

Dongchun Wang and Vennela Thumula of the Workers' Compensation Research Institute (WCRI) began the webinar by presenting the key findings of two recently released WCRI reports on "Longer-Term Use of Opioids" and "Interstate Variation in Use of Opioids." By way of background, the WCRI studies on the growth of opioid use began in 2011, when the Centers for Disease Control and Prevention (CDC) concluded that opioid overdose deaths were growing at an alarming rate. The "Longer-Term use of Opioids" report examined the relationship between opioid use trends in 25 states and the medical treatment guidelines for the opioid therapy.

Ms. Wang identified Louisiana, New York and Pennsylvania as states with higher percentages of longer term opioid use. Although opioid treatment guidelines call for random urine drug testing, psychological and psychiatric evaluation as well as physical therapy, the report concluded that few injured workers received these services. This gap was most pronounced in the area of psychological evaluation. Additional guideline recommendations included: the use of caution when exceeding the maximum daily dose, review of the state's prescription drug monitoring program (PDMP) database, referral to a specialist and tapering, interdisciplinary care and alternative care. Ms. Wang stressed the need to implement the guidelines in order for them to impact the longer term use of opioids.

The "Interstate Variation in Use of Opioids" report was then discussed by Ms. Thumula. The report findings sought to monitor the impact of the ongoing policy changes geared toward the prevention of opioid abuse. States that had adopted opioid policies including in part, enhanced state PDMPs, drug formularies, chronic pain treatment guidelines with provider education, showed reductions in opioid utilization. The up-scheduling of hydrocodone-containing products was also associated with a reduction in opioids. Ms. Thumula noted that subsequent studies over the next few years should shed additional light of the impact of the policy changes.

Mary Nix of the National Guidelines Clearinghouse (NGC) followed next with an overview of the NGC's catalog of evidence based medicine guidelines. The NGC is a public organization that supports systematic evidence reviews for guideline developers through its Evidence-based Practice Center (EPC) program. It is also a tool to help find the appropriate evidence-based guideline. In order for a guideline to be considered trustworthy and included in the NGC catalog of guideline summaries, it must meet certain criteria that were updated in 2014. Eight percent of the current NGC guidelines pertain to opioids, with the most recent 2016 CDC guideline in the process of being posted.

The last speaker was Rear Admiral Pamela Schweitzer. She is the Chief Pharmacist Officer of the US Public Health Service and works as a US Assistant Surgeon General. Dr. Schweitzer discussed the public health issue that has developed with the nation's abuse of opioids citing the direct correlation between the increase in prescribing opioids and the increase in opioid deaths. The US Surgeon General Vivek Murthy's recently launched national campaign to "Turn the Tide RX" is focused on ending the opioid abuse epidemic through meeting with physician groups to discuss revised prescribing practices involving opioids. The use of naloxone and expanded use of Medication-Assisted Treatment (MAT) will also be stressed as part of a comprehensive strategy. These three components were identified by US Health and Human Services Secretary, Sylvia Burwell, in her March 2015 initiative to curb opioid abuse.

Dr. Schweitzer emphasized the need for a team treatment approach in implementing the CDC opioid guidelines. The commitment of "all hands on deck," all working within their area of expertise, coupled with a new evidence based medicine approach to the use of opioids should accomplish the US Surgeon General's goal to "Turn the Tide RX" on opioid abuse.

NAMSAP's third part of its webinar series "Opioids in the Life of an MSA" will focus on CMS' and the industry's own efforts to curb opioid abuse in the MSA. Additional details regarding the speaker line-up and date will follow in the coming days.

Heather Schwartz Sanderson, Esq., MSCC, CHPE, CLMP, CMSP

      Chief Legal Officer

Medicare Advantage Plans have set their sights on a new target for the MSP Private Cause of Action: Plaintiff attorneys representing Medicare beneficiaries. We have previously only seen these causes of action against insurance companies, self-insureds and providers. In an opinion out of the US District Court for the Eastern District of Virginia, Humana v. Paris Blank LLP, 2016 US Dist. LEXIS 61814, Paris Blank LLP ("Defendant"), a law firm representing a Medicare beneficiary, was sued by Humana Medicare Advantage for the attorney's failure to reimburse Humana for conditional payments.

The background of the litigation involved Paris Blank's client ("Enrollee") having suffered injuries in a motor vehicle accident. As a result, Plaintiff Humana ("Plaintiff") had made conditional payments in the amount of $191,612.09 on behalf of Enrollee to cover medical expenses. As a result of the accident, Enrollee received payments from several insurance companies totaling approximately $475,600. The insurance companies issued checks for the settlement to Paris Blank, as well as to Humana and Paris Blank jointly. However, despite some of the settlement checks including Humana, the Defendant deposited these checks without Humana's endorsement.

On January 15, 2015, Plaintiff communicated to Enrollee that Enrollee owed Plaintiff $191,612.09 in conditional payments and sought reimbursement within 60 days. The communication also included information regarding the request for a waiver or filing of an appeal. Attorney Keith Marcus ("Marcus"), on behalf of Defendant, sent a request for waiver to Plaintiff on Enrollee's behalf. The request for waiver alleged that Enrollee did not have any obligations to Medicare Part A and Part B; however, the waiver request did not address any obligations owed to any Medicare Advantage Plan under Medicare Part C. Plaintiff denied Enrollee's request for waiver and, as of the filing of the Complaint, had not received reimbursement for any of the conditional payments.

Because this litigation resides in the Fourth Circuit, and no case law exists which would be precedent for the maintenance of this cause of action, Plaintiff argued that the Court should follow the reasoning of In Re Avandia Marketing out of the Third Circuit. In In Re Avandia, the Third Circuit found that Medicare Advantage Plans could maintain a private right of action to recover conditional payments made on behalf of a beneficiary.

The Defendant argued that In Re Avandia was an "aberrational" decision and noted that the Third Circuit "is the only Circuit Court of Appeal decision holding that § 1395y(b)(3)(A) provides a Medicare Advantage Plan a private cause of action for reimbursement." Although not binding precedent, the Court found persuasive the Third Circuit's determination that a Medicare Advantage Plan may pursue recovery via the Medicare Secondary Payer (MSP) private cause of action. Furthermore, the Court found, the plain language of the MSP does not place any restriction upon who may utilize that private right of action.

The Defendant's secondary argument was that Plaintiff may not maintain suit against Defendants as a law firm and an attorney representing Enrollee. More specifically, the Defendants argued that they are not primary payers, and therefore, fall outside the scope of recovery provided by any private right of action. The Plaintiff counter-argued that the MSP language reaches broadly enough to allow recovery from any entity-including law firms and attorneys receiving payment from a primary plan.
The Court agreed with the Plaintiff and found that the MSP law does not carve out any exceptions for attorneys and law firms. The MSP generally establishes a private cause of action "in the case of a primary plan which fails to provide for primary payment." Therefore, the Court denied the Defendant's Motion to Dismiss. 

While this decision is not final, the Court allowing Humana's suit to proceed and its commentary within the opinion is certainly indicative of the Fourth Circuit's view that Medicare Advantage Plans may lodge a private cause of action for double damages against Plaintiff attorneys that fail to reimburse conditional payments to those Plans. 

Further, the final result of this litigation will be interesting once the Court does get to the merits of the case if the Court finds as a matter of law that Plaintiff attorneys are in fact primary plans. Technically, the MSP private cause of action lists only primary plans as potential parties. It will be an interesting play on whether Medicare Advantage Plans "sit in the shoes" of primary plans because they are an entity that received payment from a primary plan. This would be a game changer. 

As the private cause of action case law continues to grow and expand, it would be wise for all parties to the settlement to verify the Plaintiff's Medicare status and additionally verify whether the Plaintiff is or has ever been enrolled in a Medicare Advantage Plan. If the Plaintiff is or has ever been enrolled in a Medicare Advantage Plan, it is incumbent upon all parties to the settlement to contact that plan and ensure that any conditional payments are addressed and reimbursed timely, or a private cause of action for double damages could be maintained by that Plan. 

It is also important to remember that the Centers for Medicare and Medicaid Services (CMS) is sharing Section 111 data with Medicare Advantage Plans and expects these Plans to pursue recovery where a primary payer exists. As pressure increases by CMS upon these Plans, and as the case law continues to become stronger for Medicare Advantage Plans to broadly bring these private causes of actions, primary payers, Medicare beneficiaries, providers and Plaintiff attorneys should be wary.

By: Aaron P. Frederickson, Esq.
     Manager, Regulatory Affairs, OptumRX (Part of Optum, UnitedHealth) 

The concept of “future medicals” continues to challenges attorneys, claim management professionals and other interested stakeholders who concentrate their practices in personal injury cases.  This problem is the result of a number of issues.  A recent announcement by the Centers for Medicare and Medicaid Services (CMS) about the creation of a voluntary review process for non-workers’ compensation Medicare Set-asides (MSA) will only re-ignite this contentious debate and demand people educate themselves on this important issue.
Future Medicals under the Act: Law v. Policy?
The concept of “future medicals” has caused confusion for even the most experienced practitioners.  This is due to the lack of legislative history prior to passage of the Medicare Secondary Pay (MSP) Act, mystifying regulations and CMS policy concerning the treatment of personal injury and workers’ compensation claims.[i]  Central to this issue is whether the law itself supports future medical considerations in personal injury cases, or if CMS policy is contrary to both the letter and spirit of the MSP Act.
Some legal scholars and attorneys question whether a MSA should be a consideration as part of a personal injury settlement.  This is partly because “set-asides” are a legal fiction and not called out specifically by name in the MSP Act or regulation.  Proponents also assert that regulations interpreting Medicare’s rights of future recovery only impact workers’ compensation plans.[ii]  Any implication for other personal injury claims are outside the regulatory sphere of influence.
In May 2011, Sally Stalcup from the CMS-Dallas Regional Office issued a general memorandum regarding Medicare’s interests in non-workers’ compensation personal injury cases, otherwise known as Liability Medicare Set-asides (LMSA).  In making the case for the applicability of LMSAs, it was asserted that, “Medicare’s interests must be protected; however, CMS does not mandate a specific mechanism to protect those interests.  The law does not require a ‘set-aside’ in any situation.  The law requires that the Medicare Trust Funds be protected from payment for future services whether it is a Workers’ Compensation or liability case. There is no distinction in the law.”
Arguments asserting that Ms. Stalcup’s position are not based in law, but policy, ignore the basic tenets and letter of the law.  The opening paragraph of the MSP Act notes its application to “a workmen’s compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance ....”[iii]  The statutory definition of what constitutes a “conditional payment” also supports the claim that this issue is not limited to payments by Medicare prior to settlement, but could also apply to similar payments post settlement, judgment, award, or other payment.[iv]  In sum, the MSP is not merely a reimbursement statute, but is in fact a coordination of benefits law covering both past and future medicals.
Best Practices to Consider in Your Injury Cases
State and federal courts are becoming increasingly aware of future medicals in personal injury cases given the rise in this issue being unnecessarily litigated via settlement squabbles and protracted litigation involving the misinformed.  This often includes misguided attorneys seeking to cut corners when resolving their cases.[v]  Based on the natural trajectory of future medicals in CMS policy and treatment by the courts, it is important to evaluate this issue in all personal injury cases.
In 2012, there was a lot discussion about CMS’s intentions regarding future medicals with the issuance of Medicare Secondary Payer and “Future Medicals” proposed rule.[vi]  This notice generated robust discussion among industry stakeholders and hope for guidance in personal injury cases.  This dialogue was tempered in late 2014 when the proposal was withdrawn from consideration.  The renewal of this debate has begun with recent statements by CMS that such future medical considerations in personal injury cases may be subject to voluntary review and approval.[vii]
While review of future medicals in any personal injury (and workers’ compensation) case is never a requirement, it is important for parties to consider and evaluate this issue as part of a final settlement.  Attorneys can be a better advocate for their clients by asking if such a review is “recommended” given the case specific dynamics and factors.
Consideration of a LMSA in personal injury matters does not mean one is appropriate in all instances.  It is especially important to set client expectations at not only the beginning of each case, but throughout the life of claim - including settlement discussions and drafting of the settlement release.  Cooperation and communication between the adverse parties can prevent problems before they arise and diminish client anxiety.
Case law also emphasizes that issues concerning future medicals and necessary settlement release language are an interregnal part of all discussions.  These terms should always be materials terms of the final settlement document.[viii]  Sloppy and imprecise drafting can result in protracted post-settlement legal wrangling.  Parties should also avoid using boilerplate or form language when settling their claims.  Consultation with an experienced attorney who understands these issues is essential.[ix]
Special attention should be given to cases that have the following characteristics:
  • Matters involving Medicare beneficiaries, or claimants who are 62 years and six months old, have End Stage Renal diseases (ESRD) or instances where a claimant is a recipient of SSDI benefits.
  • Instances where future medical care and treatment by the injured party is certain.  This includes instances where one side has used a life care plan to evaluate future medical needs for the plaintiff(s).  Failure to at least consider and advise clients on the issue of future medicals and Medicare’s potential rights of recovery in catastrophic case is a major red flag.
  •  “Mixed” claims that involved motor vehicle/personal injury and workers’ compensation cases.
  • The use of a structure settlement is another indictor to consider future medicals in a settlement.  This is because they are typically used in higher value cases.  Injured parties should also take notice of the special requirements of a structured settlement when funding and administering a MSA. 
The issue of future medicals in personal injury claims is something all parties should consider.  This is based on not only CMS policy and case law, but also the MSP Act itself.  While the precise method for resolving this issue is unclear, it is certain that failing to consider Medicare’s interests and protecting your client can lead to troubling results.

[i] “The Medicare Secondary Payer Act is complex and has been described in the courts as “the most completely impenetrable texts within human experience.”  Cooper Univ. Hosp. v. Sebelius, 636 F.3d 44, 45 (3d Cir. 2010).
[ii] See 42 C.F.R. §411.20, et seq.
[iii] 42 U.S.C. §1395 y(b)(2)(A)(ii).
[iv] See 42 U.S.C. §1395 y(b)(2)(B).
[v] See Benoit v. Neustrom, 2013 U.S. Dist. LEXIS 55971 (E. La. April 17, 2013), and Alvarenga v. Scope Industries, 2016 Cal. Wrk. Comp. P.D. LEXIS ______ (2016). 
[vi]  CMS-6047- ANPRM.
[viii] Paluch v. UPS, 2014 Ill. App. LEXIS 283 (Ill. App. 2014); See also Bruton v. Carnival Corp., 2012 U.S. Dist. LEXIS 64416 (S. Fla. May 2, 2012).
[ix] Iowa Supreme Court Atty. Disciplinary Bd. v. Silich, 2015 Iowa Sup. LEXIS 97 (Iowa 2015).

By: John V. Cattie, Jr., JD, MBA
      Future Cost of Care Practice, Garretson Resolution Group (GRG)

“Non in legend sed in intelligendo leges consistent.” Translated from Latin, it means “The laws depend not on being read, but on being understood.” For many of us addressing Medicare Secondary Payer (MSP) compliance issues, our comfort zone is the workers’ compensation (WC) world. And we’ve become very good at addressing MSP compliance issues within our comfort zone. However, the MSP touches a far greater universe of claims than WC alone. Understanding how it affects those claims is critical to MSP compliance in those claims.

In a webcast on July 12, 2016, I spoke about how the MSP Act affects liability insurance claims. We can all read that the MSP Act broadly prohibits the federal government from paying for a Medicare beneficiary’s medical care where payment has been made or can reasonably be expected to be made under a WC plan, an auto plan, a liability insurance plan (including self-insurance) or a no fault plan. The one exception to this broad prohibition is known as a conditional payment. Medicare is willing to make a conditional payment on behalf of one of its beneficiaries, but that payment is conditioned on the understanding that if/when Medicare’s recovery right ripens, those proceeds must be returned to the Medicare Trust Funds. This is the bargain inherent within the MSP Act. But do we understand the application of that bargain to liability insurance claims? Often, I think not.

The law applies equally to liability claims as it does to WC claims. The law imposes the same broad prohibition. The law provides the same narrow exception. And the law provides the same remedies to the federal government should parties fail to comply with the law. There is no distinction, either from an obligation perspective or a penalty perspective. 

“Nulla poena sine lege.” Translated from Latin, it means “No penalty without the law.” You cannot be punished for doing something (or failing to do something) that is not prohibited by law. Take another look at the MSP Act. Where does it discuss requiring MSAs in WC settlements? Where does it discuss submission of those MSAs to CMS for review/approval? Where does it discuss MSAs at all? It doesn’t, but many WC settlements grind to a halt because of this single issue. Despite all that concern about MSAs in WC, very little concern seems to exist about MSAs in liability settlements. Why is that? Again, the law does not distinguish between the two. 

The fact that CMS issued a Patel Memo for WC and not for liability does not matter. The fact that CMS has a WCMSA Reference Guide and does not have a LMSA Reference Guide does not matter. The fact that CMS formally reviews WCMSAs and does not formally review LMSAs does not matter. The law is what it is and says what it says. Without the law, we would not have MSP obligations in the first place.

If you’re concerned about an MSP obligation related to a WC claim, you should have that same concern in a liability claim. Especially when it comes to future medicals. Despite your belief that there might not be an obligation to review the issue in a liability claim today, the law is what it is. If you believe it applies to your WC claims, it must also apply to your liability claims because ‘nemo est supra legem.’ “Nobody is above the law.” And in the business of assessing and minimizing risk, completely ignoring these issues in liability claims seems to me to be the riskiest thing of all.

Evidence Based Medicine (EBM) Committee

Amy Biton, Esq., Co-Chairperson

Please see Amy's Article above "NAMSAP Supports Federal Efforts to "Turn the Tide RX" of Opioid Addiction."

Liability MSP Advisory Committee
B. Josh Pettingill, MBA, MS, MSCC, Co-Chairperson

The Liability MSP Advisory Committee has been working on a number of issues in its first three months since launching. It was decided upon as a group that the committee’s initial target areas of research were going to be:

  • Medicare Advantage (Part C) Plans and LMSA’s
  • Conditional Payment Resolution: Issues unique to liability cases. (i.e., No ORM, No "true" compensability, Relatedness decided by settlement)
  • MSA Preparation: WCRC Standards versus "reality" allocating. Is there a “best methodology” for LMSA’s?
  • Settlement language specific to liability cases vs. workers compensation
The first questionnaire about the preparation of liability MSA allocations was sent out last month to the membership. The purpose of the survey was to compare the differences in the preparation of WCMSAs vs. LMSAs. The results have been tabulated and a white paper is going to be published by the end of this quarter with the findings.

We are also in the beginning stages of assembling the MSP facts for pre-settlement, settlement and post-settlement stages of handling Medicare Advantage Plans (Part C). Once we have consensus, we will then be adding our findings to the same white paper. As part of this process, there will be a question and answer section done in a format similar to the CMS policy memorandums.

The goal of this research is to provide an available resource for all NAMSAP members seeking guidance for handling Liability MSAs and Medicare Advantage Plans. This coincides to the June announcement from CMS about LMSAs and the recent cases on Medicare Advantage Plans. The committee will also work closely with NAMSAP leadership and other stakeholders to provide guidance to CMS for said issues.


Data & Development (DDC) Committee
Fran Provenzano, RN, BSN, CDMS, CCM, CLCP, MSCC, CMSP, Chairperson 

The Data and Development Committee continues tracking trends from both CMS and the vendor community. Recently, we had a committee member who shared the following experience. A beneficiary contacted CMS directly requesting CMS demand a revision of the MSA by the submitting vendor to include specific diagnostics (which the vendor community has not included in MSAs for at least 5 years) nor did CMS include the claimant’s requested diagnostics within their approval of the submitted WCMSA. This was the first occurrence that any of our panel had heard of this type of situation. If anyone else has had to deal with this issue, please share your experience.

The goal of our committee is for greater participation by the larger vendors to enhance the collection of trending data. Neither the submitter or their company are identified and no identifiable claimant information from CMS has ever nor will be requested from a committee member. Please consider participation in this committee. The information/data fields requested is neither proprietary or contains trade secrets.


Webinar Subcommittee
Shawn Deane, JD, MEd, MSCC, CMSP, Chairperson

Upcoming 2016 Webinars:

  • August - Opioids in the Life of an MSA -- Part III - 1.5 credit hours
  • November - Ethics in MSP Compliance - 1 credit hour
  • December - Year-In Review – Looking Forward - 1 credit hour

Policy and Legislative Committee
Erin Collins, Esq., Co-Chairperson
Katie Fox, MSCC, Co-Chairperson

The former Legislative Committee now has a new name: Policy and Legislative Committee. The Committee did not want to be limited by its name Legislative matters since much of Medicare Secondary Payer guidance comes in the form of policy. The Committee is excited about its new name and is looking ahead to the next year to determine what policy and legislation can be targeted on behalf of the membership. One of the focuses of the Committee this summer is identifying key issues affecting the membership. The Committee sent out a survey to membership, but only received limited feedback.
 The Committee wants to hear from you so it can develop strategic solutions to the real issues being faced in the Medicare Secondary Payer world. The Policy and Legislative Committee is looking forward to a productive year!


Divided We Stand 
- Medicare Advantage Organization Case Law
A jurisdictional round-up of preeminent cases across the nation and the varying holdings affecting reimbursement rights of private entities. - The Online World of Allocating
An orientation of MSP social media, online resources, and software.

Submission vs. Non-submission (Opt-out)
A knock-out panel of industry heavyweights weigh-in on this controversial subject. The audience will reveal the victor by decision.

An Rx for Prescription Drug Costs: Mitigating Costs While Providing Quality Care
Mitigating costs while providing quality care.

What's Affecting Stakeholders?
A discussion addressing MSP concerns and potential future advocacy efforts.



The NAMSAP Communications Committee would like to encourage you to submit an industry-related article for our upcoming newsletter. We are accepting submissions in the following categories: Legal, Legislative, and Medical. If you are interested in contributing to one of these categories, or have an idea for a new category, please contact Rita Wilson, Communications Committee Chair. She can be reached by email at

Click here for past Newsletter editions!

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