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By Settlement Solutions, April 29, 2013 1:40 pm

On April 22, 2013, CMSCenters for Medicare and Medicaid Services released an updated User Guide for NGHPsNon Group Health Plans. Access to the updated User Guide can be found here. PMSI applauds the early release of this User Guide as CMSCenters for Medicare and Medicaid Services indicated in their recent April 9, 2013 teleconference that the User Guide would likely not be issued until May.

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By Settlement Solutions, April 10, 2013 2:50 pm

CMSCenters for Medicare and Medicaid Services held a teleconference regarding MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting Reporting on April 9, 2013 which pertained to Liability Insurance (including Self-Insurance), No-Fault, and Workers’ Compensation collectively recognized as Non-Group Health Plans (NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation). During this teleconference, CMSCenters for Medicare and Medicaid Services addressed various topics, including, but not limited to MMSEAMedicare Medicaid and SCHIP Extension Act Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting Reporting, recent MIRMandatory Insurer Reporting alerts, and the implementation of ICD-10International Classification of Diseases, 10th Edition as it relates to reporting.

Please note that this blog only touches on some of the highlights of the CMSCenters for Medicare and Medicaid Services Teleconference¹ and is not all-inclusive of items discussed during the teleconference. CMSCenters for Medicare and Medicaid Services stated that all official guidelines are posted on the Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting web page at www.cmsCenters for Medicare and Medicaid Services.gov/MandatoryInsRep. If there are any conflicts between the documents/information posted on the web site and what is stated on the teleconference, the written documents/information posted on the web site prevail.

A schedule of upcoming teleconferences will be available on the website; there are no future scheduled teleconferences at this time.

CMSCenters for Medicare and Medicaid Services posted an alert on March 24^th regarding data elements that are now optional rather than required. CMSCenters for Medicare and Medicaid Services hopes that it will simplify the process for RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA. The alert is available on the website.

The profile recertification process for RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA has been put on hold temporarily but is scheduled to resume in the near future. Recertification will not occur as it did in 2012 with many RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA going through recertification at the same time. The activity in 2013 will be evenly distributed throughout the year and an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA that recertified in early 2012 may find their 2013 recertification to be later in the calendar year. In 2014, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should receive the recertification request on the anniversary of the recertification from 2013. RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should wait to receive the recertification request before contacting the COBCCoordination of Benefits Contractor.

For technical support, RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should always utilize the escalation process provided in the NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation User Guide.

An updated NGHPNon-Group Health Plan - liablity (including self-insurance), no-fault and workers' compensation User Guide is expected to be issued in May 2013. However, most updates will include alerts previously issued and information previously provided by CMSCenters for Medicare and Medicaid Services. The updates to the User Guide will be notated in the first chapter of each section of the User Guide.

Questions submitted to the Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting mailbox

Will CMSCenters for Medicare and Medicaid Services add an ICD-9International Classification of Diseases, 9th Revision code for Instantaneous Death?

CMSCenters for Medicare and Medicaid Services has no current plans to make this an acceptable ICD-9International Classification of Diseases, 9th Revision code. RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA’s will need to follow up and find information about the injuries which lead to the death.

What should an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do if a query was submitted for a 65 year old individual but the query did not find the individual to be a Medicare beneficiary?

If the individual did not match in CMSCenters for Medicare and Medicaid Services’ system, the individual is likely not a Medicare beneficiary. However, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should double check the information being submitted and be sure that the information submitted is accurate. There should be no need for further action by the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA; however, CMSCenters for Medicare and Medicaid Services recommends that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do one query on or after the date of settlement due to the fact that the beneficiary may be pending receipt of benefits when initially queried. The RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can cease querying after they confirmed they are not a beneficiary at the time of settlement.

If an individual is no longer treating, but the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA retains legal responsibility due to the fact that the state does not allow the closure of future medical treatment, how should these claims be reported?

Even if the individual is not currently receiving treatment, it should be treated as an open ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) in the event that the beneficiary may require further treatment. The RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA should not terminate ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) until legal responsibility for future medical treatment is terminated. The fact that an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA has administratively closed a case does not mean ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) should be terminated.

If a liability settlement occurs that is exactly $5,000, is that currently reportable?

The current liability TPOCTotal Payment Obligation to the Claimant thresholds run from October 1, 2012-September 30, 2013 and only settlements over $5,000 need to be reported. Therefore, if the TPOCTotal Payment Obligation to the Claimant occurred after October 1, 2012 and it was for exactly $5,000 it would not be a reportable claim. However, the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA may voluntarily report the claim.

When will ICD-10International Classification of Diseases, 10th Edition be applied to Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting , and if so, how does CMSCenters for Medicare and Medicaid Services plan to implement ICD-10International Classification of Diseases, 10th Edition?

As of right now, October 1, 2014 is the roll out/go-live date for ICD-10International Classification of Diseases, 10th Edition. CMSCenters for Medicare and Medicaid Services plans to start testing in October 2013 to give the industry a year to get ready for ICD-10International Classification of Diseases, 10th Edition implementation for Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting . CMSCenters for Medicare and Medicaid Services will issue an alert confirming the requirement of ICD-9International Classification of Diseases, 9th Revision versus 10 when they have made a firm decision.

Will CMSCenters for Medicare and Medicaid Services answer questions regarding the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 on today’s teleconference call?

No questions regarding the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will be answered. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 will be implemented per CMSCenters for Medicare and Medicaid Services timelines and through rulemakings.

Open Question and Answer Session  

Regarding loss of consortium and other derivative claims, if a spouse files and releases “all claims” in a settlement, but the spouse did not make any emotional/physical claim should the “NOINJ” code should be used? Is the claim reportable even if medicals are not part of a wrongful death settlement?

Yes, the “NOINJ” code should be used in this situation, and there is a separate report for each individual-i.e., both spouses should have separate reports. Yes, the claim is still reportable even if medicals are not part of the wrongful death settlement; RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA are not permitted to interpret state laws for CMSCenters for Medicare and Medicaid Services.

In a no-fault claim, if the Statute of Limitations (SOL) has ran, can the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA terminate the ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case)?

Yes, if the no-fault carrier is going to cease payment and will not pay anything after the SOL has expired then the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can terminate the ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case).

In a liability case where a Medicare beneficiary will require future treatment, but the Plaintiff agrees in writing to pay for their future medical care, will the defendant be subject to future liability by Medicare?

CMSCenters for Medicare and Medicaid Services refused to answer this question and stated that it was “outside the scope of the call.”

With respect to the ANPRMAdvance Notice of Proposed Rulemaking issued last year regarding MSPMedicare Secondary Payer Act and future medicals, is there any sense of timing as to when the industry will receive proposed rules or the agency’s next steps or statements? How will the ANPRMAdvance Notice of Proposed Rulemaking affect defendants?

CMSCenters for Medicare and Medicaid Services also refused to answer this question. They noted that the industry can look for updated announcements in the Federal Register. They also noted that even the people working on CMSCenters for Medicare and Medicaid Services rulemakings often times do not know the day it will be published.

What should RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do when Medicare beneficiaries are being denied coverage or treatment for items not related to their liability or workers’ compensation case?

CMSCenters for Medicare and Medicaid Services recommends that RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA provide the recent MedLearn article that CMSCenters for Medicare and Medicaid Services issued which makes it clear that an open liability, no-fault or workers’ compensation case is not a basis for a provider denying treatment.

In terms of payment, CMSCenters for Medicare and Medicaid Services does have prompt pay rules, unless there is ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) posted related to the claim. Most cases are denied appropriately; however, the beneficiary can also appeal the denial. The beneficiary can also call 1-800-Medicare or can seek assistance from their local regional office.

If there is a liability policy that also has MedPay, and payments are made incrementally under MedPay, would that be reported as ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case)?

This would be reported as ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case); MedPay is ORMOngoing Responsibility for Medicals (i.e., carrier accepting payment responsiblity for case) since it is a type of no-fault.

With regard to the March 24^th alert, if there are errors that come back from a prior submission and the error is contained within a field that is now “optional” pursuant to the March 24^th alert, should the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA disregard the error report or make the correction?

On the next quarterly submission, you can remove your e-code only if it was blank in the first place. However, if information was provided that was incorrect, it should be corrected on the next quarterly submission.

What if a claim was made with ICD-9International Classification of Diseases, 9th Revision codes but becomes reportable after October 2014? How will that be reported to CMSCenters for Medicare and Medicaid Services?

CMSCenters for Medicare and Medicaid Services’ intent is to allow the ICD-9s to continue to be reported; however, this is something that CMSCenters for Medicare and Medicaid Services is looking into. CMSCenters for Medicare and Medicaid Services does not expect people to interpret/transfer ICD-9International Classification of Diseases, 9th Revision to ICD-10International Classification of Diseases, 10th Edition. The goal is to make this as easy as possible for everyone.

^{1. Questions and answers have been paraphrased.
Disclaimer:
This blog is provided as reference material and is based on verbal information derived from third parties during teleconferences hosted by the Centers for Medicare and Medicaid Services (CMSCenters for Medicare and Medicaid Services). PMSI does not assume liability or responsibility for the accuracy or completeness of the material in this document. The information contained herein should not be construed as an endorsement of any kind or an official transcript of the teleconference. PMSI makes no representation or warranties of any kind, either express or implied, that this information is accurate, up-to-date, or error free and PMSI shall not be liable in any amount for any damage, however arising, that may occur as a result of your reliance on this information. This document is advisory in nature only and does not represent official policy, procedures, or opinions of CMSCenters for Medicare and Medicaid Services or PMSI. For official information regarding Section 111Section 111 of the Medicare Medicaid and SCHIP Extension Act stating requirements for mandatory insurer reporting of the Medicare, Medicaid, and SCHIP Extension Act (MMSEAMedicare Medicaid and SCHIP Extension Act), refer to the official web page https://www.cmsCenters for Medicare and Medicaid Services.gov/MandatoryInsRep/.↩}

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By Settlement Solutions, April 8, 2013 2:53 pm

Next week, Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP will offer her expertise in reference to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and other MSPMedicare Secondary Payer Act legal updates on Tuesday, April 16, 2013 from 1 PM -2 PM EDT.

The webinar is complimentary and 1 hour of CEU and CLEContinuing Legal Education credit has been applied for in multiple states; all attendees who successfully complete the Webinar will be provided with a Certificate of Attendance. For more information on obtaining CEU or CLEContinuing Legal Education credit for this webinar and to Register, please click here.

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By Settlement Solutions, February 5, 2013 10:07 am

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 reforms certain aspects of the MSPMedicare Secondary Payer Act and the MMSEAMedicare Medicaid and SCHIP Extension Act. While the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not directly broach how to protect Medicare’s interests with regard to any future medical component, it does directly reform components of the conditional payment reimbursement process and MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act.

Conditional payments are allowed under the MSPMedicare Secondary Payer Act when the primary payer does not make payment promptly. However, Medicare makes the payment “conditioned” upon reimbursement by the primary payer. Essentially, these are payments made by Medicare that the primary payer is responsible for, and as a result, Medicare is owed the right to reimbursement. If Medicare conditional payments are not reimbursed, Medicare has the right to sue for double damages. Due to this priority right to recover, Medicare conditional payments are sometimes referred to as a “super lien.”

Under the MMSEAMedicare Medicaid and SCHIP Extension Act, liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance or plans are required to report the assumption of ongoing responsibility for medical treatment as well as settlements, judgments, and awards with Medicare beneficiaries. A graduated scale for the requirement to report these claims has been implemented based on the settlement amount. The purpose behind MIRMandatory Insurer Reporting is to enable the CMSCenters for Medicare and Medicaid Services to have visibility into settlements occurring with Medicare beneficiaries as well as a record of cases where ongoing responsibility exists, which is important for proper coordination of benefits. Awareness of these requirements is important since there is the potential for a $1000 per day/per claim penalty for the failure to report.

Note that President Obama signed the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 into law on January 10, 2013; therefore, when the “enactment date” is referred to, it shall mean the aforementioned date.  The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 was passed attached to Medicare IVIG access bill in H.R. 1845. For a full copy of H.R. 1845, please click here.

The following section will address some of the issues that the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 seeks to resolve with regard to conditional payments and MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 can be broken down into 5 major components. While addressing each component, we will also answer frequently asked questions for each topic.

1)      New Conditional Payment Resolution Process

Parties entering settlements with Medicare beneficiaries have been all too familiar with long wait times when trying to finalize conditional payment amounts with CMSCenters for Medicare and Medicaid Services, as well as being unable to receive a final demand until after settlement.

There is good news on the horizon. In 9 months from the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date (on or about October 10, 2013), CMSCenters for Medicare and Medicaid Services will be implementing a new process to provide a final conditional payment amount prior to settlement. It will be available online, and there will be stricter timelines for when CMSCenters for Medicare and Medicaid Services must provide the demand amount.

This is how it will work: anytime 120 days prior to a settlement, judgment, or award, you notify CMSCenters for Medicare and Medicaid Services of your expected settlement date and amount. During this time, conditional payment information will be available on a “website.” Payments made by CMSCenters for Medicare and Medicaid Services must be posted to the website no later than 15 days from the payment date.

Within 65 days from the time CMSCenters for Medicare and Medicaid Services receives notice, a “statement of reimbursement amount” will be available for download- which can be considered the final demand, as long as you are in the “protected period.”  The “protected period” means 65 days after CMSCenters for Medicare and Medicaid Services has received notice of your settlement, judgment, or award; however, CMSCenters for Medicare and Medicaid Services can extend the 65 day period for a an additional 30 days only under exceptional circumstances, and exceptional circumstances cannot be more than 1 percent of cases. CMSCenters for Medicare and Medicaid Services will provide this in a format where the final demand is time and date stamped and settlement must occur within 3 business days of downloading the statement or it will no longer be valid as a final demand.

If you want to dispute the conditional payment amount, you should provide CMSCenters for Medicare and Medicaid Services with a proposed resolution amount along with an explanation of the reason for the adjustment. CMSCenters for Medicare and Medicaid Services then has an 11 business day window in which they can do the following in response to the proposed resolution:

a)      Not respond within 11 days of the proposed resolution. In that case, the proposed resolution is deemed accepted by CMSCenters for Medicare and Medicaid Services.

b)      CMSCenters for Medicare and Medicaid Services can respond within 11 business days and state that they disagree with the proposed resolution.

c)      Another option is for CMSCenters for Medicare and Medicaid Services to respond within the 11 business day period and propose an “alternate discrepancy resolution.”

In addition to the dispute process just described, CMSCenters for Medicare and Medicaid Services will also need to promulgate regulations around creating a formal appeals process.

 FAQs:

Q. Which website is being referred to? Is it the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not specify if this website will be an enhanced version of the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, or if it will be a new website. However, it does state that the website will be a form of “successor technology.” We are hopeful that the website will provide more enhanced functionality than the current MSPRCMedicare Secondary Payer Recovery Contractor - responsible for verification of conditional payments portal, which has some limitations, such as requiring you to have a case number before being able to use the portal for a particular case.

Q. What is considered official notification to CMSCenters for Medicare and Medicaid Services of a settlement, judgment, or award under this section? 

A. How notice is to be made under this section is not clear. Currently, CMSCenters for Medicare and Medicaid Services is notified of settlements through calls to the COBCCoordination of Benefits Contractor, as well as through MIRMandatory Insurer Reporting under the MMSEAMedicare Medicaid and SCHIP Extension Act. Therefore, it is not clear if either or both of these types of notifications will suffice as “adequate notice.” The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 also does not specify if a separate notification will need to be made through this website.

Q. Isn’t requiring settlement to occur within 3 business days of downloading the final demand a bit fast? 

A. Yes, it is fast. However, it does seem that if the parties do not end up settling within 3 business days, that they can simply re-download a new time and dated stamped “statement of reimbursement amount” when settlement is about to occur.

Q. What is the “alternate discrepancy resolution” that CMSCenters for Medicare and Medicaid Services can propose if they do not agree with your proposed dispute on the conditional payment amount?

A. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 does not describe this at all. One could guess that this will be an informal, non-binding method to resolve the dispute. If the parties cannot agree, then the new appeals process will likely provide a different avenue and a more formal administrative appeal if you are not satisfied with the result during the informal dispute process.

2)      Threshold for Exemption from Conditional Payment Reimbursement and Reporting

Finding it frustrating to deal with conditional payments and MIRMandatory Insurer Reporting on nominal, nuisance value cases that you just want to close out quickly? Not only has the industry been voicing this concern, but CMSCenters for Medicare and Medicaid Services has also been under scrutiny for conditional payment collections on these cases. It has come to light that in some cases, it actually costs more for CMSCenters for Medicare and Medicaid Services to recover a conditional payment than the amount they paid “conditionally.”

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 requires the DHHSDepartment of Health and Human Services to calculate and publish a single threshold amount for settlements, judgments, awards, or other payments in which they will not seek reimbursement of conditional payments and you will not have any MIRMandatory Insurer Reporting obligations. They will publish this amount by November 15^th each year, and this will begin in the year 2014. The threshold amount will be the amount where CMSCenters for Medicare and Medicaid Services can demonstrate that their costs of recovering the conditional payments equal the collections.

 FAQs:

Q. Does this threshold also apply to MSAsMedicare Set-Asides or to the consideration of Medicare’s interests in regard to future medicals? 

A. No, it only applies to conditional payments and MIRMandatory Insurer Reporting.

Q. What will the threshold be? Do any thresholds currently exist for conditional payments?

A. Currently, liability settlements under $300 are exempted from reimbursement of conditional payments to CMSCenters for Medicare and Medicaid Services. It is unclear what the new threshold will be; however, many have commented that this threshold is much too low.

3)      Discretionary Fines for noncompliance with MIRMandatory Insurer Reporting

The threat of a $1000 per day/per claim fine for noncompliance can be pretty scary when one error in a quarterly report can result in a $90,000 penalty! It also seemed rather arbitrary that the fine was mandatory and there were no formal rules/guidelines as to when CMSCenters for Medicare and Medicaid Services could and could not impose fines.

The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 strikes the portion of the MMSEAMedicare Medicaid and SCHIP Extension Act law that states that a RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA “shall be subject. . .” In its place, the language now says “may be subject.” This replacement language essentially makes fines for noncompliance with MIRMandatory Insurer Reporting discretionary instead of mandatory.

But first, within 60 days of the enactment date of the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011, CMSCenters for Medicare and Medicaid Services must solicit comments from the industry in the Federal Register which practices should be considered an event subject to sanctions. After considering the public comments, we will see some finalized rules regarding which practices by an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA would be subject to sanctions.

FAQs:

Q. What will the industry consider to be practices that are subject to sanctions? Will the main standard be “good faith” efforts on behalf of the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA?

A. The commentary from the industry as to what actions should be subject to sanctions will certainly be interesting. One would think that CMSCenters for Medicare and Medicaid Services would carve out an exception to being sanctioned if the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could document good faith efforts to report the claim(s). Additionally, CMSCenters for Medicare and Medicaid Services may implement some more specific practices that would be subject to sanctions. For example, CMSCenters for Medicare and Medicaid Services has repeatedly stated that sending bad data with errors is not considered compliance. If an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA was notified by CMSCenters for Medicare and Medicaid Services that the data contained errors, and over a period of time it is demonstrated that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA did not attempt to correct the data, that may be a practice subject to sanctions.

Q. CMSCenters for Medicare and Medicaid Services recently announced its plans to audit group health plans (GHPsGroup Health Plans) for compliance with MIRMandatory Insurer Reporting. Are non group health plans (NGHPsNon Group Health Plans) next to be audited? Has CMSCenters for Medicare and Medicaid Services ever issued fines? 

A. To our knowledge, CMSCenters for Medicare and Medicaid Services has not yet issued any fines for noncompliance with MIRMandatory Insurer Reporting for NGHPsNon Group Health Plans. However, CMSCenters for Medicare and Medicaid Services recently rolled out a work plan to audit GHPsGroup Health Plans for compliance with MIRMandatory Insurer Reporting in 2013. It would seem that NGHPsNon Group Health Plans will likely be audited next and that parties not in compliance would be subject to fines. Therefore, fines are likely to be issued in the near future.

 4)      Use of SSNsSocial Security Numbers/HICNs in MIRMandatory Insurer Reporting

Many RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA, particularly those that deal with liability claims, have voiced concern over the difficulty to obtain a Medicare beneficiary’s SSNSocial Security Number. Without an SSNSocial Security Number, an RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA cannot report the case under MIRMandatory Insurer Reporting. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 makes reporting SSNsSocial Security Numbers optional.

However, it is very important to note that CMSCenters for Medicare and Medicaid Services has been given an extended period of time to implement this. They have 18 months after the enactment date to publish rules to implement this, and they can file extensions for up to 1 year if certain criteria are met.

 FAQs:

Q. How will CMSCenters for Medicare and Medicaid Services be able to identify beneficiaries without these identifiers?  

A. It has been estimated that CMSCenters for Medicare and Medicaid Services will need to come up with some kind of new unique identifier and likely overhaul current systems to implement this.  

Q. Since this may take a few years to be implemented, what can RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA do in the meantime while SSNsSocial Security Numbers are still required to be reported in those situations where it is unable to obtain a beneficiary’s SSNSocial Security Number?  

A. CMSCenters for Medicare and Medicaid Services has provided the industry with a method to document and demonstrate good faith efforts to obtain SSNsSocial Security Numbers. Additionally, there has been some recent case law where a carrier refused to tender a settlement due to the beneficiary not providing their SSNSocial Security Number. In those cases, the courts sided with the RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA and required the beneficiaries to provide their SSNSocial Security Number so that the RREResponsible Reporting Entity - payer subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA could be in compliance with the MMSEAMedicare Medicaid and SCHIP Extension Act and not subject to fines. If needed, RREsResponsible Reporting Entities - payers subject to Mandatory Insurer Reporting Requirements mandated by Section 111 of the MMSEA can document their good faith efforts to obtain SSNsSocial Security Numbers and/or bring the matter to court if the beneficiary refuses to provide their SSNSocial Security Number.

5)      New Statute of Limitations for Conditional Payments

Previously, the statute of limitations for CMSCenters for Medicare and Medicaid Services to recover conditional payments was unclear. The SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 provides that if CMSCenters for Medicare and Medicaid Services is given notice of the settlement, judgment, award or other payment, then they may not seek recovery of that conditional payment any later than 3 years after notice is given. This is scheduled to take effect 6 months after the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011’s enactment date.

 FAQs:

Q. Isn’t a final demand from CMSCenters for Medicare and Medicaid Services “final?” Why would you be concerned with a statute of limitations if you reimbursed a final demand from CMSCenters for Medicare and Medicaid Services?  

A. Technically, the term “final demand” is a misnomer. CMSCenters for Medicare and Medicaid Services still has the right to discover, research and recover conditional payments owed even after a final demand is paid. This new statute of limitations will give a clear timeline of when CMSCenters for Medicare and Medicaid Services can recover conditional payments as long as you notify CMSCenters for Medicare and Medicaid Services of your settlement, judgment, or award. Now, 3 years after notice is given, you will be in the clear.

PMSI will keep you updated on any developments in regard to the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011. For questions on the SMARTStrengthening Medicare and Repaying Taxpayers Act of 2011 ActStrengthening Medicare and Repaying Taxpayers Act of 2011 and how PMSI can assist, please contact Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP at Heather.Schwartz@pmsisettlement.com.