Franco Signor

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

Bennett L. PughFranco Signor

1618 Montgomery Hwy. Suite 104 #278(205) 901-1116

www.francosignor.com

Franco SignorLaw states:• Beginning July 1, 2009, “liability insurance including self insurance, no-

fault insurance, and workers’ compensation laws and plans” must report claims involving a Medicare beneficiary to Medicare when the claim is “resolved (or partially resolved) through a settlement, judgment, award, or other payment on or after July 1, 2009.”

• “Must also report on all claims for which the [responsible reporting entity] still has responsibility for ongoing payments for medical services as of July1, 2009,” such as open medicals in workers’ compensation claims.– Dates have been revised.

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Section 111 Notification Requirements

• To assist Medicare with recovery of CPC’s and to keep Medicare from paying when a primary payer exists (or arguably exists), the law now imposes obligation to notify Medicare of primary payer situations starting in 2009.

Franco SignorWho is the RRE?

According to CMS . . .• “For re-insurance, stop loss insurance, excess insurance, umbrella

insurance, guaranty funds, patient compensation funds, etc. which have responsibility beyond a certain limit, the key in determining whether or not reporting for 42 U.S.C 1395y(b)(8) is required for these situations is whether or not the payment is to the injured claimant/representative of the injured claimant vs. payment to the self-insured entity to reimburse the self-insured entity. Where payment is being made to reimburse the self-insured entity, the self-insured entity is the RRE for purposes a settlement, judgment, award, or other payment to or on behalf of the injured party and no reporting is required by the insurer reimbursing the self-insured entity.”

Franco SignorDeductibles

• Where the self-insurance in question is a deductible, and the insurer is responsible for Section 111 reporting with respect to the policy, it is responsible for reporting both the deductible and any amount in excess of the deductible.– The total of both the deductible and any amount in excess of the

deductible should be reported.• If an insured entity engages in a business, trade, or profession and acts

without recourse to its insurance, it is responsible for Section 111 reporting with respect to those actions.

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Reporting in the Corporate Structure• An entity may not register as a RRE for a sibling in its corporate structure.• An entity may register as a RRE for any direct subsidiary in its corporate

structure.• A parent entity may register as a RRE for any subsidiary in its corporate

structure regardless of whether or not the parent would otherwise qualify as a RRE.

• For reporting purposes, a captive is considered a subsidiary of a parent entity and a sibling of any other subsidiary.

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Which Claims Must be Reported• Any claim involving Medicare beneficiaries in which

medicals are claimed and/or released in a settlement, judgment, award, or other payment resolving (or partially resolving) the claim.

– Subject to timelines, exceptions, and lookback provisions.

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ORM• Claims with Ongoing Responsibility for Medical

Payments (ORM) must be reported.

– RRE either accepted responsibility but hasn’t yet made a payment.

– RRE has made at lease one payment to the claimant or on behalf of the claimant.

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Total Payment Obligation to the Claimant (TPOC)

• Defined as a one-time payment, as in a settlement, judgment, award, or other payment as intended to resolve/partially resolve a claim.

• Typically applicable in liability cases

– Liability insurance (including self-insurance) claim reports where the TPOC date is prior to October 1, 2011 with no ORM involvement do not have to be reported.

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Redundancy• On claims with multiple defendants, ALL RRE’s involved in a

settlement remain responsible to also report the claim to Medicare.

• Records must be submitted on beneficiary by beneficiary basis, by type of insurance, by policy number, by RRE, etc. Therefore, an RRE may submit more than one record for a particular individual in a particular quarter’s submission window.

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Date of Incident• In workers’ comp., the date of incident does not matter. If a

claim is pending on or after January 1, 2010, it must be reported if appropriate.

• In liability context, if the date of incident is prior to December 5, 1980, reporting is not required on such claims even if such claim is settled on or after October 1, 2011.– For exposure claims, if any exposure was subsequent to

December 5, 1980, claim must be reported if not settled prior to October 1, 2011.

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Interim Reporting Thresholds• For no-fault insurance there is no de minimus dollar threshold.• For liability insurance there is no de minimus dollar threshold for reporting

claims with ORM.• For workers’ compensation file submissions, only claims with ORM which

meet all of the following are excluded from reporting:– Medicals only– Lost time of no more than seven calendar days– All payments made directly to the provider– Total payment does not exceed $750.00

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Total TPOC

Amount

TPOC Date On or After

Reporting Required in the Quarter Beginning

TPOC’s over $5,000

October 1, 2010 January 1, 2011

TPOC’s over $2,000

October 1, 2013 January 1, 2014

TPOC’s over $300

October 1, 2014 January 1, 2015

Mandatory Thresholds for Workers’ Compensation TPOC’s

Franco SignorMandatory Thresholds for Liability TPOC’s

Total TPOC Amount TPOC Date On or After Reporting Required in the Quarter Beginning

TPOC’s over $25,000 July 1, 2012 October 1,2012

TPOC’s over $5,000 October 1, 2012 January 1, 2013

TPOC’s over $2,000 October 1, 2013 January 1, 2014

TPOC’s over $300 October 1, 2014 January 1, 2015

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Claims That DO NOT Have To Be Reported• Claims in which:

– A judgment or defense verdict is rendered concluding that no money is owed.

– No claim was made for medical expenses, i.e., liability case with property damage on with no release of medicals.

• Be careful with general releases!

– There is no settlement, judgment, award, or other payment (including assumption of ORM).

– The only payment was a onetime payment for a defense evaluation from a provider or physician.

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Direct Data Entry (DDE)• DDE option will be available to RRE’s who will only

submit 500 or fewer claims per year.

• RRE’s must register to utilize the DDE option.

• Claim records will be submitted one report at a time.

• Separate query function will not be offered.

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Query Function• A RRE or its Agent my “query” Medicare once a

month, per RRE ID, to determine whether individuals are current Medicare beneficiaries.

• Must provide name, social security number, date of birth, and gender.

• CMS will send a response file indicating if the data provided matched a Medicare beneficiary.

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Beneficiary Lookup• Users of the Section 111 COB website can submit

online requests, in addition to query file submissions, to find out if the individual can be matched to a Medicare beneficiary.

• Beneficiary Lookup is not available to RRE’s using the DDE submission method.

• Limited to 100 requests per month, per RRE ID.

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Penalties for Failure to Comply• Plans failing to provide notification to

Medicare are subject to civil penalty of $1,000.00 per day, per claimant.

• There are no safe harbors. All plans are expected to comply.

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• Notification Requirements will ensure Medicare does not pay when another entity is, even arguably, responsible.

• Will also enable Medicare to more easily recover conditional payments from primary payers.

• Expected to save Medicare over $1 billion between 2010 and 2017.

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CMS Memo 2/24/2010• In general, a Section 111 NGHP RRE will be compliant with

its Section 111 reporting requirements if it registers for reporting, and once registered, the RRE engages in data exchange testing, and once testing is completed the RRE begins and continues with regular Section 111 production data exchanges. The RRE will then be participating in the Section 111 process in the manner prescribed by CMS.

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• The User Guide revised July 3, 2012 contains important information regarding Section 111.

• Additional information can also be found at Medicare’s Reporting website:

– http://www.cms.hhs.gov/MandatoryInsRep/

• Specific Questions may be emailed to CMS at

– PL10-173SEC111-comments@cms.hhs.gov

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Questions?

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Bennett L. Pugh

Franco Signor

1618 Montgomery Hwy. Suite 104 #278

(205) 901-1116

ben.pugh@francosignor.com

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Medicare IVIG Access & Strengthening Medicare & Repaying  Taxpayer Act of

2012•  Became law on 1/10/13•  Access to Intravenous Immune Globuline•  Contains 5 Sections that deal with Medicare

Compliance

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Section 201: Conditional Payment Information

•  Effective 9 months after passed into law.•  This is the deadline for CMS to adopt final

regulations to implement•  Allows parties to obtain CPC information before

settlement in a timely manner•  Applies to WC and GL claims

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Demand Letter•  Parties may request a demand letter from Medicare that is good for a

period of time before settlement

•  Requires CMS to be provided notice within 120 days of an expected or reasonably expected date of settlement

•  CMS has 65 days to provide demand letter but can extend it another 30 days

•  After appropriate period has elapsed, parties can retrieve CPC info from website and relay on it

•  Settlement must occur within 120 days of notice and 3 days from download from website

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Jurisdiction• If elected, the Secretaries determination is final

• If procedure not followed, default to previous method

• Right of appeal provided to primary payer but not Medicare.  Beneficiary must be given notice.

• Federal jurisdiction created 

• No impact on MSAs

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Section 202 Reporting Thresholds • Effective 1/1/14 • Applies only to liability claims (expected recovery is less than

cost to recover)• Excludes ingestion, implantation and exposure cases• Annual threshold calculated by Secretary of HHS published by

11/15• No obligation to repay Medicare or report if claim falls below

annual threshold.• CMS is to report to Congress on thresholds for WC and No

Fault

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Section 203:  Reporting Under Section 111 • Effective 1/10/13• Amended to provide “up to” $1,000 per day per claim, giving

Medicare discretion• Requires Medicare to solicit proposals for safe harbor

situations within 60 days• Requires Medicare to propose final safe harbors for good faith

efforts when beneficiary cannot be determined• No deadline for final safe harbor proposals

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Section 204: Use of SSN in Reporting• Effective 18 months after enactment

• Secretary can request a one year extension on application to Congress

• Allows RRE’s to report without using the SSN or HCIN

• Mitigates against potential state law privacy claims

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Section 205:  Statute of Limitations• Effective 6 months after enactment 

• Creates a 3 year statute of limitations on CPC and Section 111 reporting from settlement, judgment, award or other payment

• To trigger the protection, the claim must be electronically reported