Section 111 of the MMSEA Imposes Significant New Penalties for Failing to Protect Medicare’s Interests
by Mark Popolizio and Carrie T. Taylor
The following serves as an “update” to the information contained in an article published in the Utah Bar Journal, January, 2009, Vol. 22, No. 1.
As noted in the article, the Center for Medicare & Medicaid (CMS) is currently in the process of releasing its Mandatory Insurer Reporting (MIR) guidelines to implement the provisions of Section 111 of the Medicare, Medicaid & SCHIP Extension Act (MMSEA).
Subsequent to the preparation of the January article, CMS released its “Revised” Interim Record Layout (12/5/08 Version). In addition, CMS held its fourth national “Town Hall” teleconference on January 22, 2009, which was followed by a “Question and Answer” session on January 28, 2009. CMS released this information in relation to Section 111 compliance regarding “liability insurance (including self-insurance), no-fault insurance and workers’ compensation,” which is collectively referred to under the MIR as “Non-Group Health Plans” (non-GHP or NGHP).
The authors provide the following update reflecting the new information:
“Revised” Interim Record Layout (12/5/08 Version)
The “Revised” Interim Record Layout (12/5/08 Version) amends CMS’ “Updated” Interim Record Layout released in November 2008. The Revised Layout serves as CMS’ current operating directives regarding the data fields and information that must be “captured and reported” under Section 111, along with amended written directives regarding same.
The following provides a non-exhaustive summary of key aspects of the Revised Layout:
Under Section 111, determining exactly what party is the RRE is important as said party is the entity ultimately responsible for complying with Section 111. CMS discussed this concept in general and provided information regarding certain specific situations, including self-insured entities where payment of the deductible is made through the insurer; multiple defendants, RREs in bankruptcy; and situations involving reinsurance, stop loss insurance, excess and umbrella insurance, guaranty funds, and patient compensation funds. (Revised Interim Record Layout at p. 3-5).
In general, reporting under Section 111 is triggered upon (i) claim resolution (partial resolution) via a settlement, judgment, award or other payment on or after July 1, 2009, and (ii) situations where “the RRE has accepted Ongoing Responsibility for Medical payments,” including claims for which “the RRE still has responsibility for ongoing payments for medical services as of July 1, 2009, regardless of an initial resolution (partial resolution) date prior to July 1, 2009.”
Discussion of the numerous and detailed directives regarding the “reporting triggers” is beyond the scope of this update. However, two directives of particular note involve “closed” or inactive files and claims pre-dating 12/5/80.
With respect to files that a RRE may consider administratively “closed” or inactive due to inactivity or a return to work, CMS indicated that the RRE may still be considered to have “ongoing responsibility for medicals” if the claim is “subject to reopening or a further request for payment.” In this instance, the RRE is required to report the case to CMS and would be precluded from filing a “termination report.” (Revised Interim Record Layout at p. 13).
CMS also addressed claims predating 12/5/80, which is the enactment date of the Medicare Secondary Payer Statute (MSP). With respect to workers’ compensation claims predating 12/5/80, CMS indicated that same are within the ambit of Section 111 as Medicare has been secondary to workers’ compensation since the inception of the Medicare program in 1965. With respect to liability (including self-insurance) and no-fault, CMS indicated that reporting would not be required under Section 111 if the date of incident as defined by CMS was prior to 12/5/80. (Revised Interim Record Layout at p. 12-13).
CMS’ Town Hall teleconferences January 22, 2009 & January 28, 2009
Following the release of the Revised Layout, CMS held national Town Hall teleconferences on January 22, 2009 and January 28, 2009.
The most significant new policy announcement made by CMS at the teleconferences was the introduction of a direct “Query Access” system in the NGHP context to assist RREs determine a claimant’s Medicare entitlement status.
While Section 111 requires a RRE to “determine” a claimant’s Medicare entitlement status, it does not provide a process to be followed to make such determination; nor does it provide an implied consent provision allowing a RRE to request this information or require a claimant to execute an authorization allowing the RRE to obtain this information. Accordingly, a legitimate concern has been raised regarding the likely situation where a RRE’s efforts to determine Medicare entitlement status are thwarted by a lack of cooperation on behalf of the claimant and/or his or her counsel, inability to locate the claimant, or other reasons. In these situations, determining Medicare entitlement status may be difficult or impossible.
In response to this potential problem, CMS announced the establishment of an NGHP “Query Access” system. CMS advised the industry that the exact written directives governing the NGHP “Query Access” system will be contained in the forthcoming NGHP User Guide targeted for release sometime in February, 2009.
In the interim, CMS orally provided the following information regarding the key operating features of the forthcoming NGHP Query Access system:
–Social Security Number (The SSN is the key required element)
–Name
–Date of Birth
–Gender
If there is a “match” between the information submitted and the records contained in the Social Security Administration (SSA), CMS will issue a “response file” containing the applicable HICN number identifying that person as a Medicare beneficiary which should be used for reporting. However, the basis for entitlement or date of entitlement will not be provided due to privacy reasons. Likewise, information regarding whether the claimant has applied for social security disability (or the status of any such application) will not be provided.
CMS stressed that a “non-match” return should not be viewed as CMS’” confirmation” that the individual is not a Medicare beneficiary; rather, only that there was not a match “based on the information submitted.” On a related note, a question was raised as to whether CMS would establish a “safe harbor” for RREs in situations where an RRE was unable to obtain a claimant’s social security number (SSN). The question being whether CMS would establish safe harbor provisions if an RRE was unable to obtain the SSN after meeting a defined level of effort and activity. In response, CMS only indicated that it was still considering establishing a “model form” to assist in determining a claimant’s SSN.
CONCLUSION
The foregoing provides updated information regarding Section 111 and CMS’ MIR guidelines as of early February, 2009. The authors again remind the reader that the MIR process remains a “work in progress,” and it is likely that certain information outlined herein may be modified (and in some cases even nullified) upon CMS’ release of subsequent information either in writing through updates to the Interim Record Layout and the forthcoming NGHP User Guide, or via oral proclamation as part of CMS’ several upcoming “Town Hall” teleconferences.
Accordingly, it is recommended that all interested parties regularly consult CMS’ dedicated Section 111/MIR website at http://www.cms.hhs.gov./MandatoryInsRep for all pertinent updates. In addition, the authors welcome inquires and may be contacted as follows: Mark Popolizio, J.D.; mpopolizio@nqbp.com; 786-457-4393. Carrie Taylor, J.D.; carrie-taylor@rbmn.com; 801-531-2000.