presented by: russell s. whittle, esq., mscc, cmsp taking medicare’s interests into consideration:...
TRANSCRIPT
Presented by:
Russell S. Whittle, Esq., MSCC, CMSP
Taking Medicare’s Interests Into Consideration:
Mandatory Insurer Reporting (MIR)
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Objectives
1. Provide Clarity to Medicare’s New Mandatory Insurer Reporting (MIR) Program
2. Explain the Purpose of MIR
3. Discuss the Penalties Associated with Noncompliance
4. Steps to Mitigate Risks Associated with MIR and MSP Compliance
Medicare Overview
• Statistics (Kaiser Family Foundation)– 47M Americans currently have Medicare coverage
• 8M are permanently disabled under 65
– 16% of the Medicare population is under 65 and permanently disabled
– Medicare is 12% of the Federal budget and 20% of the total national healthcare expenditures
– Medicare spending is predicted to double from $528B (approx. £330B) in 2010 to $1,038B (approx. £649B) in 2020
– Next 20 year predictions:• People on Medicare is projected to rise from 47M to 79M• Ratio of workers per beneficiary will decline from 3.7 to 2.4
– By 2017, Part A Medicare trust fund is projected to be depleted– Part A spending has exceeded income since 2008
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Section 111 of the Medicare/Medicaid
SCHIP Extension Act of 2007• Contextual Background of the Act
– 42 CFR 411.25 (1990-2007) – Section 111 (2007)– Electronic Reporting Claims Involving
Medicare Beneficiaries
• Compliance Obligation– Separate from Conditional Payment (CP)– Separate from Medicare Set Aside (MSA)
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Which Entities are Required to Report?
Responsible Reporting Entity (RRE)
+ The Claimant is on Medicare
+ Triggering Event (Reporting Trigger Met)
Mandatory Insurer Reporting (MIR)
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Who the RRE is Not
• RRE Determination is Fact and Situational Specific per CMS’ MIR Definitions
• MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting: User Guide 3.3 July 3, 2012 - page 11
• In General, Carriers, Self Insured's, Joint Pools/ Risk Funds, Other Potential Parties
• TPAs Generally are NOT RREs (Agent)• Claimant/ Plaintiff Counsel NOT RREs
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Definition TPOC
• Total Payment Obligation to Claimant (TPOC): Reporting Required on Claim Resolution or Partial Resolution via Settlement, Judgment or Award or Other Payment – WC on or after 10/1/10 – Liability on or after 10/1/11
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Definition ORM
• Ongoing Responsibility for Medicals (ORM): Reporting Required when RRE Assumes Ongoing Responsibility for Medicals On or After 1/1/10
• In Addition, if the ORM Exists On or Through 1/1/10 as Defined by CMS “ Look Back Period”
• Determination vs. Payment
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Overview Current Landscape
• Reporting Dates– 1/1/10 ORM– 10/1/10 WC TPOC– 10/1/11 Liability TPOC
• 10/1/11 vs. 1/1/12
• Technology Challenges
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Overview Current Landscape
• Delay of Reporting for Liability Claims that Do Not Involve ORM
• Enforcement & Penalties Status– Compliance Thresholds (Claims Handling)
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Reporting Trigger Exceptions
• TPOC Interim Monetary Exemptions– Through 2012: $0-$5000– 2013: $0 - $2000– 2014: $0 - $600– 2015: No Exemptions Apply
• ORM Exceptions– Qualified (Pertaining to “Look Back”) – Special Exceptions (Dr.’s note)– WC Exception through 2012
Alert Sept-30-11
• NOTE: This Delay is Optional!
TPOC Amount TPOC Date On or After
Section 111 Reporting Required in the
QuarterBeginning TPOCs over $100,000 October 1, 2011 January 1, 2012 TPOCs over $50,000 April 1, 2012 July 1, 2012 TPOCs over $25,000 July 1, 2012 October 1, 2012
All TPOCs over min. threshold * October 1, 2012 January 1, 2013
TPOC Amount TPOC Date Range Reporting Required as ofOver $5,000 October 1, 2011 to December 31, 2012 1-Jan-12
Over $2,000 January 1, 2013 to December 31, 2013 1-Jan-13
Over $600 January 1, 2014 to December 31, 2014 1-Jan-14
Over $0 January 1, 2015 and later 1-Jan-15
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Overview Projected MIR Landscape
• Enforcement
• Litigation– Target Cases?
• Large vs. Small• Voluntary Reports vs. Non-Reporters• Intent vs. Unintentional• House Bill 1063 (SMART act)
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What Information is Necessary for Reporting?
• Reporting Components– Monthly Medicare Query Function (MQF)
• Five Reporting Elements:1. Social Security Number (SSN)/ Health Insurance Claim
Number (HICN)
2. First Initial First Name
3. First 6 characters Last Name
4. Date of Birth (DOB)
5. Gender
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What Information is Necessary for Reporting?
• Reporting Components– Quarterly MIR Reporting
• 140 CMS Specific Data Fields (CMS Definitions)• Key Data Field Elements:
– Date of Incident– ICD-9 Codes (CMS Accepted)– Line of Insurance– Plaintiff Counsel Demographics– TPOC Date and Amounts, if applicable– ORM Indicator/ Termination Date– Any Information for Claimant’s Other than Injured Party
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Penalties
$1000 per day per claim!• Not Discretionary per Medicare Secondary
Payer (MSP) Act
• Scope of Enforcement Unknown (Based on MIR Data)
• No Current Policy in Place for Assessing Fines; Watch for CMS Policy Memo(s)
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Effects of Reporting on Litigants
• Bird’s-eye View of Claims and Litigants • Sets the Stage for:
– Conditional Payment Recovery– Future Medical Exposure (MSA)– Penalties for Noncompliance
• Potential Denial of Claimant’s Medicare Benefits
• Refusal to Recognize Settlement• Potential Claimant Counsel Malpractice
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Does it Quack Like a Duck?
Case Examples• Example #1 – WC Case
– D/A 3/4/07– Compensable Right Knee Injury – CL Became a MC Beneficiary in 2009 in Conjunction
with His SSD Award for a Non-work Related Cardiac Condition
– RRE Settles the Case on 7/18/11 for $65k – Identify and Discuss Section 111 Reporting Obligations
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Does it Quack Like a Duck?
Case Examples• Example #2 WC Case
– D/A 2/1/10 – Denied Claim – CL becomes MC Beneficiary in 11/10 – RRE Settles Claim on a Disputed Basis on
8/1/11 for $100k– Identify and Discuss Section 111 Reporting
Obligations
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Does it Quack Like a Duck?
Case Examples• Example #3 WC Case
– True or False: • D/A 3/29/10 • Compensable Claim • At the Time Claim is Picked Up Compensable, RRE
Determines that CL is NOT a MC Beneficiary • RRE thereby Concludes that (a) no Section 111
Report is Required and (b) it has Satisfied all of its Potential Section 111 Obligations Regarding this Claim
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Does it Quack Like a Duck?
Case Examples
• Example #4 WC Case– D/A 2/10/11. – RRE Does an Investigation for the First Few Weeks and
Determines to Pick the Claim Up as Compensable on 3/15/11.
– RRE has Trouble Finding a Medical Provider who will See the CL and the CL’s First WC Medical Appointment is Not Until 4/19/11 for which the RRE Pays the Associated Bill on 5/28/11.
– Discuss the Issues and Considerations Regarding the ORM “Assumption Date” under CMS’ Current MIR Directives.
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Does it Quack Like a Duck?
Case Examples• Example #5 WC Case
– D/A 8/29/04 – Compensable Low Back Injury – RRE Provides Treatment, Including Two Surgeries,
through 11/09– CL’s Condition then Improves and His Treatment has
Basically Stopped– Although the SOL has Not Technically Run on the
Claim, the RRE Considers this File Administratively Closed and, as such, Concludes it has No Section 111 Reporting Obligations
– Discuss the Various Section 111 Reporting Issues Raised by this Example
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Case Law Examples
• Conditional Payments – U.S. Vs. Stricker– U.S. vs. Harris– Bradley vs. Sebelius
• Section 111- Disclosure of SSN– Seger vs. Tank Connection, LLC– Hackley vs. Garofano– Smith vs. Sound Breeze
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Mitigating MIR & MSP Exposure
• Consult with an Expert
• RRE Registration
• Voluntary Reporting (Liability Pre-10/1/11)
• Threshold Responses 20%
• Quality of MIR Data Entry
• MQF Data
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Conclusion
• CMS Continues to Tighten Compliance Grip to Protect the Medicare Trust Fund and Provide Funds for the State Children’s Health Insurance Programs
• MIR is Required at Risk of Significant Penalties to All Parties, Requiring a Cooperative Effort by Carriers, Attorneys, Claimants, and Reporting Agents
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Questions?
• Thank You for Your Participation!
