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Medicare Secondary Payer Mandatory Reporting Provisions

Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007

42 USC § 1395y(b)(7)&(8) (see Appendix F for statutory text which is also reproduced below)

Schools must determine if they are Responsible Reporting Entities (RREs) under this law. This will include any institution that self insures for any portion of its no fault medical payment coverage, and any institution that makes a payment higher than the reporting threshold  to a Medicare Beneficiary to satifsy a claim involving medical treatment. This could be a deductible, a self-insured retention, or an uninsured loss under auto, general liablity, or professional liablity.

Thus, any payments to a Medicare recipient (including partial payments and payments made as settlements, judgments or awards) for a personal injury that requires medical services (including mental health claims and prosthetic device claims) must be reported if it meets the threshold amount. Also of note, an empty file will not be required to be submitted on a quarterly basis if you have nothing to report. So schools who likely will have possibly nothing to report over the next decade are relieved of the obligation to file quarterly.

Threshholds for Reporting

In December of 2016, CMS issued a technical alert (see under Resources) that announced a change in reporting requirements for serveral different types of settlements on or after Jan. 1, 2017, and no ongoing responsibility for medicals. The threshold for all liablity insurance settlements is now $750. Workers' Compensation settlements and no fault also are set at $750. This overrides October 2016 guidance that set the threshold at $1,000. For a history of the payment amounts see Verisk, CMS releases updated Reporting and Recovery Threshholds with News on TPOCs
 

Penalties: Congress has imposed a $1,000 per claim per day penalty for the failure to timely report a payment as required.

The genesis for this law is that Medicare (as secondary payer) has lost over $43 billion* (in an 8 year window) by failing to be reimbursed when they should have been reimbursed by the liable party. This law sets up a reporting system for all payments to Medicare recipients.

Registration is required for affected entities.  Each entity would need an authorized representative who is legally responsible and signs a contract with the government, and also an account manager (must be a different person) who is collecting data and reporting on a quarterly basis. 

Data Collection involved includes getting SSNs, date of birth, gender, name and address for all claimants. Once the entity determines the person is a Medicare beneficiary, the reporting must be done within 135 days of payment. The school will want to ask defense counsel to do interrogatories to capture the claimant's SSN so it is in place when the reporting must be done. When there is simply settlement discussions without litigation, the SSN will also need to be collected up front. There should be a check and balance system so no settlement checks go out the door without data being in the data base. 

A Group Health Plan (GHP) organization that must report under Section 111 is an entity serving as an insurer or third party administrator (TPA) for a group health plan. In the case of a group health plan that is self-insured and self-administered, this would be the plan administrator or fiduciary. These organizations are referred to as Section 111 GHP responsible reporting entities, or RREs. GHP RREs may use agents to submit data on their behalf but the RRE remains solely responsible and accountable for adhering to the Section 111 reporting requirements and accuracy of the data submitted.

UE has a May 2009 newsletter with FAQs on Section 111. This is posted with permission from UE.

Statutory Text

SECTION 111 - MEDICARE SECONDARY PAYOR
(a) In General - Section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)) is amended by adding at the end the following new paragraphs:

(7) REQUIRED SUBMISSION OF INFORMATION BY GROUP HEALTH PLANS-
(A) REQUIREMENT
- On and after the first day of the first calendar quarter beginning after the date that is 1 year after the date of the enactment of this paragraph, an entity serving as an insurer or third party administrator for a group health plan, as defined in paragraph (1)(A)(v), and, in the case of a group health plan that is self-insured and self-administered, a plan administrator or fiduciary, shall--
(i) secure from the plan sponsor and plan participants such information as the Secretary shall specify for the purpose of identifying situations where the group health plan is or has been a primary plan to the program under this title; and
(ii) submit such information to the Secretary in a form and manner (including frequency) specified by the Secretary.
(B) ENFORCEMENT-
(i) IN GENERAL- An entity, a plan administrator, or a fiduciary described in subparagraph (A) that fails to comply with the requirements under such subparagraph shall be subject to a civil money penalty of $1,000 for each day of noncompliance for each individual for which the information under such subparagraph should have been submitted. The provisions of subsections (e) and (k) of section 1128A shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). A civil money penalty under this clause shall be in addition to any other penalties prescribed by law and in addition to any Medicare secondary payer claim under this title with respect to an individual.
(ii) DEPOSIT OF AMOUNTS COLLECTED- Any amounts collected pursuant to clause (i) shall be deposited in the Federal Hospital Insurance Trust Fund under section 1817.
(C) SHARING OF INFORMATION- Notwithstanding any other provision of law, under terms and conditions established by the Secretary, the Secretary--
(i) shall share information on entitlement under Part A and enrollment under Part B under this title with entities, plan administrators, and fiduciaries described in subparagraph (A);
(ii) may share the entitlement and enrollment information described in clause (i) with entities and persons not described in such clause; and
(iii) may share information collected under this paragraph as necessary for purposes of the proper coordination of benefits.
(D) IMPLEMENTATION- Notwithstanding any other provision of law, the Secretary may implement this paragraph by program instruction or otherwise.

(8) REQUIRED SUBMISSION OF INFORMATION BY OR ON BEHALF OF LIABILITY INSURANCE (INCLUDING SELF-INSURANCE), NO FAULT INSURANCE, AND WORKERS' COMPENSATION LAWS AND PLANS-
(A) REQUIREMENT
- On and after the first day of the first calendar quarter beginning after the date that is 18 months after the date of the enactment of this paragraph, an applicable plan shall--
(i) determine whether a claimant (including an individual whose claim is unresolved) is entitled to benefits under the program under this title on any basis; and
(ii) if the claimant is determined to be so entitled, submit the information described in subparagraph (B) with respect to the claimant to the Secretary in a form and manner (including frequency) specified by the Secretary.
(B) REQUIRED INFORMATION- The information described in this subparagraph is--
(i) the identity of the claimant for which the determination under subparagraph (A) was made; and
(ii) such other information as the Secretary shall specify in order to enable the Secretary to make an appropriate determination concerning coordination of benefits, including any applicable recovery claim.
(C) TIMING- Information shall be submitted under subparagraph (A)(ii) within a time specified by the Secretary after the claim is resolved through a settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).
(D) CLAIMANT- For purposes of subparagraph (A), the term 'claimant' includes--
(i) an individual filing a claim directly against the applicable plan; and
(ii) an individual filing a claim against an individual or entity insured or covered by the applicable plan.
(E) ENFORCEMENT-
(i) IN GENERAL- An applicable plan that fails to comply with the requirements under subparagraph (A) with respect to any claimant shall be subject to a civil money penalty of $1,000 for each day of noncompliance with respect to each claimant. The provisions of subsections (e) and (k) of section 1128A shall apply to a civil money penalty under provisions apply to a penalty or proceeding under section 1128A(a). A civil money penalty under this clause shall be in addition to any other penalties prescribed by law and in addition to any Medicare secondary payer claim under this title with respect to an individual.
(ii) DEPOSIT OF AMOUNTS COLLECTED- Any amounts collected pursuant to clause (i) shall be deposited in the Federal Hospital Insurance Trust Fund.
(F) APPLICABLE PLAN- In this paragraph, the term `applicable plan' means the following laws, plans, or other arrangements, including the fiduciary or administrator for such law, plan, or arrangement:
(i) Liability insurance (including self-insurance).
(ii) No fault insurance.
(iii) Workers' compensation laws or plans.
(G) SHARING OF INFORMATION- The Secretary may share information collected under this paragraph as necessary for purposes of the proper coordination of benefits.
(H) IMPLEMENTATION- Notwithstanding any other provision of law, the Secretary may implement this paragraph by program instruction or otherwise.
(b) Rule of Construction- Nothing in the amendments made by this section shall be construed to limit the authority of the Secretary of Health and Human Services to collect information to carry out Medicare secondary payer provisions under title XVIII of the Social Security Act, including under parts C and D of such title.
(c) Implementation- For purposes of implementing paragraphs (7) and (8) of section 1862(b) of the Social Security Act, as added by subsection (a), to ensure appropriate payments under title XVIII of such Act, the Secretary of Health and Human Services shall provide for the transfer, from the Federal Hospital Insurance Trust Fund established under section 1817 of the Social Security Act (42 U.S.C. 1395i) and the Federal Supplementary Medical Insurance Trust Fund established under section 1841 of such Act (42 U.S.C. 1395t), in such proportions as the Secretary determines appropriate, of $35,000,000 to the Centers for Medicare & Medicaid Services Program Management Account for the period of fiscal years 2008, 2009, and 2010.

*Information on the $43B from a 12/31/2008 white paper produced by Robert K. Briscoe, Christine M. Fleming & C. Stephen Taylor of Milliman Inc. Specifically, they state, "But Medicare's practices began to change following a 1999 report from the Government Accountability Office ("GAO"). The 1999 GAO report indicated that Medicare had erroneously paid medical expenses of approximately $43 billion between 1991 and 1998 that should have been covered by a PPP."

 

Resources

Mandatory Insurance Reporting for Group Health Plans

MMSEA Section 111 Mandatory Insurer Reporting Quick Reference Guide for non-gropu health insurers (2014)

CMS Mandatory Reporting Thresholds PPT (July 2017)

CMS Change in Reporting Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers’ Compensation Settlements, Judgments, Awards or Other Payments (December 2016)

Mandatory Insurer Reporting, A Primer

 

*TPOC means Total Payment Obligation to Payment 

updated 1-17-18 mlo