IMPORTANT NOTE: The public comment period regarding the proposed mandatory insurer reporting requirements ends September 30, 2008. If you are a workers’ compensation carrier, self-insured employer, or TPA, you will want to review the “non-GHP” requirements of the proposed rules.
The Centers for Medicare & Medicaid Services (CMS) has published its preliminary mandatory insurer reporting requirements under the Medicare, Medicaid and SCHIP Act of 2007 at: http://www.cms.hhs.gov/MandatoryInsRep.
As background, the Medicare, Medicaid, and SCHIP Extension Act of 2007 implements mandatory reporting requirements under the Medicare Secondary Payer statute for various “applicable plans,” which includes workers’ compensation carriers and self-insured employers (collectively referred to by CMS as “non-Group Health Plan” or “non-GHP” entities). See 42 U.S.C. 1395y(b)(8). The Act requires that the “non-GHP” determine whether a workers' compensation claimant is entitled to Social Security benefits for any reason (retirement, disability, survivor's benefits). If so, information about the claim must be submitted to CMS, “in a form and manner” to be specified, to allow CMS to determine whether the non-GHP should be the primary payer, and to identify any potential recovery of conditional payments that may have been made by Medicare. Failure to comply with the reporting requirement will result in a penalty of $1,000 per day of noncompliance. The timeframe (when the penalty kicks in) will be based on the date a claim “is resolved through settlement, judgment, award, or other payment (regardless of whether there is a determination or admission of liability).”
The reporting requirement goes into effect July 1, 2009 for non-GHP plans. The draft rules for the mandatory reporting provisions are posted (and will be updated) at: http://www.cms.hhs.gov/MandatoryInsRep/
This site also includes a link allowing parties to sign up to receive ongoing email updates and notifications from CMS (under “Related Links Inside CMS”) as changes are implemented.
The primary document that should be reviewed by all carriers, self-insured employers, and adjusters is the Supporting Statement at: https://www.cms.hhs.gov/MandatoryInsRep/Downloads/SupportingStatement.pdf
This document outlines the proposed mandatory reporting requirements. The proposed process requires “reporting entities” to electronically report specific “data elements” (outlined in Attachment D of the Supporting Statement) through a secure Web site (currently under development). Note that the Supporting Statement states that TPAs have no reporting responsibility, but may report as an agent of a carrier. It is thus important that carriers and self-insured employers who contract with TPAs have a clear understanding as to whether they, or their TPA, will be responsible for reporting. It is the carrier/self-insured employer who will be liable for penalties due to reporting violations.
Public Comment Period
CMS has established a public comment period, which ends September 30, 2008. See Federal Register Notice 73 FR 45013: https://www.cms.gov/MandatoryInsRep/Downloads/MMSEA111FederalRegister.pdf
An email address has been set up for accepting public comments electronically: PL110-173SECTION111email@example.com
The guidelines for submitting public comments can be found at: https://www.cms.hhs.gov/MandatoryInsRep/Downloads/OpportunitytoComment.pdf
I encourage all interested parties to review the preliminary requirements and take advantage of the public comment period. Some items I have noted in my initial review that I will be submitting during the public comment period:
• There are “data elements” for identifying a claimant’s attorney, but not for the carrier/employer’s attorney. This means that there is no way to insure that correspondence timely flows from CMS (or their contractor) to the carrier/employer’s legal representative, who is often the primary contact during the settlement/Medicare approval process (this has already caused us problems over the last several years).
• While electronic data collection offers efficiencies and standardization, it is very rigid and unforgiving in complex (i.e., real life) situations. I would suggest a comment field allowing for minimal narrative explanation where the available data elements do not sufficiently reflect the actual situation.
• The data elements allow for only one set of claimant/carrier parties. CMS needs to consider how reporting is to be accomplished in settled multi-party cases, such as last injurious exposure or third party liability cases.
CMS has yet to provide any details about how penalties will be assessed, or what the appeals process will be. One hopes another comment period will be available once those rules are established.
Please be sure to contact our office if you have any questions, and as always, we will keep you posted as more detailed information becomes available.
======== We are pleased to offer this information to help keep you informed. But since we are lawyers, we include the following caveat: the information contained herein is not intended as legal advice. Independent research and analysis may be required in order to determine what effect recent decisions or changes may have on your unique situation. ========