Category: Daily News

In a first-of-its kind study, Ametros found that over 34,000 claims per year were denied to Medicare beneficiaries’ post-settlement because Workers’ Compensation Medicare Set Aside (WCMSA) funds were responsible for the payments.

Following settlement resolution of a workers’ compensation claim, the MSA may only be used to “…pay for medical treatment or prescription drugs related to [the underlying] claim, and only if the expense is for a treatment or prescription Medicare would cover. This is true even if you are not yet a Medicare beneficiary… ” See Self-Administration Toolkit for WCMSAs, v1.3, Sec. 4 & WCMSA Reference Guide, Sec. 17.3

An MSA administrator is responsible for accurate record keeping of payments made from the account. On an annual basis, within 30 days from the anniversary of the settlement, the administrator reports attestation information to CMS. This attestation is a “statement that payments from the WCMSA account were made for Medicare-covered medical expenses and Medicare- covered prescription drug expenses related to the work- related injury, illness, or disease.” (WCMSA Reference Guide, v3.5, Sec. 17.5). An attestation is also reported in instances where an annuitized MSA has been temporarily depleted prior to annual re-funding of the account as well as when an account is permanently exhausted. Id.

The Centers for Medicare and Medicaid Services (CMS) has long warned that it requires WCMSA funds to be used appropriately before Medicare benefits will pay for injury-related treatment. CMS’s WCMSA Reference Guide states in Section 17.3 “Medicare will deny all [workers’ compensation] injury-related claims until the WCMSA administrator can demonstrate appropriate use equal to the full amount of the WCMSA.”

Despite this, many in the industry have questioned whether Medicare ever denies claims. Ametros decided to find out.

Collaborating with ResDac researchers, Ametros analyzed Medicare Part B claim data from 2018-2020 and has published “A Study of CMS Policy on Treatment Denials for Injured Workers with a Medicare Set Aside.”

Examining a random sample of five percent of the Medicare beneficiary population over a three-year period, researchers estimated Medicare denied 35,980 WCMSA claims in 2018, 36,060 in 2019, and 30,720 in 2020 because the individual’s WCMSA account should have paid the claims.

The report provides a state-by-state chart of denial breakdowns along with definitions and explanations of the Medicare Secondary Payer and MSA terms, how CMS tracks MSAs, and MSA post-settlement administration and compliance obligations.

Almost a third of all denials were in California, which has a robust workers’ compensation claim volume. Less populated states like Indiana, Colorado, and Maryland also had a substantial amount of denied claims.

The data shows a robust tracking system is in place for Medicare to identify and deny payment when an individual with an MSA submits a claim and they have properly attested to exhausting their funds.

The report concludes by saying “it’s evident that individuals who choose to self-administer risk being denied future treatments and services by Medicare because they have not properly complied with Medicare’s guidelines. This includes setting up their account incorrectly or not using their MSA settlement funds appropriately.”

Ametros will present the study’s findings in a February 15 webinar hosted by John Kane, Shawn Deane, and Jayson Gallant starting at 1 p.m. EST. Register here.

The Division of Workers’ Compensation announces its emergency regulation for Medical-Legal Evaluations became effective on January 18, 2022 and will expire on July 19, 2022.

There are two possible 90 day extensions (in accordance with Government Code section 11346.1(h)).

The emergency regulations can be found on the DWC website.

The regulation allows a QME or AME to complete a medical-legal evaluation through telehealth when a hands on physical examination is not necessary and all of the following conditions are met:

– – There is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), or the physician is asked to address the termination of an injured worker’s indemnity benefit payments or address a dispute regarding work restrictions; and
– – There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the QME. Agreement to the telehealth evaluation cannot be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied under this section, they may file an objection with the Worker’s Compensation Appeals Board, along with a Declaration of Readiness to Proceed to set the matter for a hearing;
– – The telehealth evaluation conducted by means of a virtual meeting is consistent with appropriate and ethical medical practices, as determined by the QME and the relevant medical licensing board; and
– – The QME attests in writing that the evaluation does not require an in person physical exam.

During the time this regulation is in effect, section 34(b) of title 8 of the California Code of Regulations is suspended, and for purposes of QME telehealth evaluations conducted under this regulation, the medical office listed on the panel selection form for the QME shall be deemed the site of the telehealth evaluation.

For all other telehealth evaluations conducted under this regulation, the medical office of the physician that is within a reasonable geographic distance from the injured worker’s residence shall be deemed the site of the telehealth evaluation.

A continuing crush of patients in the South Bay became so severe Tuesday that the San Diego region’s two main medical facilities declared internal disasters, a term used to indicate that conditions have worsened to the point where patient care may be affected.

According to the report in the San Diego Union Tribune, Chris Van Gorder, chief executive officer of Scripps Health, said that the emergency department at Scripps Mercy Hospital Chula Vista had 73 patients mid-afternoon filling its 24 emergency beds and 23 more inside tents in the parking lot. Twenty more were in beds set up in emergency room hallways with additional spaces taken in areas traditionally used for recovery from surgical procedures or medical imaging.

He added in an email just after 9 p.m. that Scripps was able “to move some patients” and exit disaster status “for now.”

While such a cascade did not appear to be underway, a second facility – Sharp Chula Vista Medical Center – experienced similar levels of stress Tuesday, declaring the same internal disaster status.

The largest hospital serving the South Bay, Sharp Chula Vista had 30 of its 48 emergency beds occupied by patients waiting to be admitted to the main hospital, which was already full. As of 7 p.m., 116 of the medical center’s 349 total beds were filled with patients fighting COVID-19.

Statewide, California continues to struggle with large numbers of its residents testing positive. According to the Los Angeles Times, California recently hit the 7 million case mark, just one week after hitting 6 million, a record pandemic pace.

When the number of emergency patients exceeds an individual hospital’s resources, facilities traditionally turn to diversion, a system that allows them to significantly reduce ambulance deliveries, providing a few hours for harried staff to catch up.

But that option was taken off the table last week when the county’s emergency medical services director temporarily suspended self-directed diversion for all hospitals through Jan. 27. The move came as a way of coping with the fact that high patient volume was regularly forcing a large percentage of the region’s hospitals to simultaneously go on bypass.

Declaring an internal disaster is, in some significant sense, hospitals telling the region’s emergency medical services system that despite a ban on bypass, they can’t handle the volume and are closing their doors to additional ambulance patients.

Dr. Eric McDonald, the county’s chief medical officer, said Tuesday afternoon that duty officers who run the local emergency medical services system were working to help alleviate the disaster conditions at the two South Bay locations. The situation countywide, he added, did not appear to be as impacted as it was Tuesday in the South Bay.

Scripps said Tuesday afternoon that it has shifted some patients out of Chula Vista to other hospitals it operates across San Diego County. Transfers as far north at Tri-City Medical Center in Oceanside, Van Gorder said, were occurring. Tri-City confirmed in a short statement Tuesday evening that it recently requested and received “some staffing support to address the challenging environment caused by elevated demand for services and workforce limitations during the current surge.”

Tri-City did not provide the total number of supplemental staff that the state sent to supplement its Oceanside workforce. McDonald said the number was about 50.

The CWCI reports that California workers’ compensation COVID-19 claim volume continues to track with the state’s fluctuating COVID infection trends. The latest monthly count of COVID workers’ comp claims jumped 172% in December to the second highest level of the year, as the Omicron variant spread rapidly across the state

CWCI’s latest projection also shows that the December total could ultimately increase to 12,438 cases once claims that are yet to be filed or still under investigation are added to the count.

The January 10 update to CWCI’s COVID-19/non-COVID-19 Interactive Claim Application, shows that since the pandemic was declared in March 2020, there have been 181,770 COVID claims reported to the DWC.

The monthly COVID claim count fell to a 5-month low in November, then reversed course in December as the Omicron variant led to a wave of coronavirus cases throughout the state.

Although additional claims with November and December injury dates are still being reported, the current count of 8,292 COVID claims for December represents a one-month increase of 172% and is already above the peak level reached in August during last summer’s Delta surge.

The spike in claim volume at the end of the year pushed the total number of COVID claims reported to the DWC for 2021 to 63,034, which translates to 10.0% of all 2021 work injury and illness claims reported to the state. That was significantly better than the 118,995 COVID claims reported for 2020, prior to the availability of COVID vaccines, when COVID cases accounted for 17.9% of all California workers’ compensation claims reported to the state.

With the Omicron surge at the end of 2021, however, COVID claims as a percent of all California workers’ compensation claims more than tripled from 6.6% in November to 20.5% in December ­- the highest percentage since January 2021.

The latest report also notes a total of 1,284 COVID death claims since the pandemic began, with 955 of those having 2020 injury dates and 329 having 2021 injury dates, so COVID death claims accounted for well over half (54.5%) of the 1,752 work-related death claims reported to the DWC for 2020 and 39.4% of the 836 death claims reported thus far for 2021.

The new data also show that while COVID claims were most prevalent among health care workers in the first year of the pandemic, accounting for nearly a third (32.5%) of 2020 COVID claims, with the introduction of vaccines and increased safety procedures that percentage dropped to 22.5% in 2021.

Meanwhile, public safety/government workers’ share of the COVID claims jumped from 16.7% in 2020 to 24.7% in 2021, as their share grew steadily as the year progressed, climbing from 20.7% of the COVID claims in the first quarter to 30.8% of the COVID claims in the fourth quarter. As a result, the public safety/government sector surpassed the health care to become the #1 sector for California workers’ compensation COVID claims in 2021.

Federal OSHA recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The litigation efforts to stop the mandate ultimately ended up in the US Supreme court which heard oral arguments on the issues, and published a ruling in the case of National Federation of Independent Businesses v OSHA.

The 6-3 majority of Justices ruled against the OSHA imposed vaccine mandate finding that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’ “

The dissenting opinion said that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. But the majority responded that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’ “

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”  And the opinion added that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

President Biden responded to the ruling by saying “I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” And he concluded by saying that “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,”

However in the companion case of Biden v Missouri, the 5-4 majority approved the HHS/CMS omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID-19 vaccine.

The majority reasoned that “COVID-19 is a highly contagious,dangerous, and – especially for Medicare and Medicaid patients – deadly disease. The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

They concluded that the HHS/CMS rule “thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”