Section 111 of the Medicare, Medicaid, and Schip Extension Act A Practical Primer

Transcription

1 Section 111 of the Medicare, Medicaid, and Schip Extension Act A Practical Primer Elna Nguyen Griggs Ellis, Carstarphen, Dougherty & Griggs P.C San Felipe, Ste 1900 Houston, Texas (713) (713) [fax] Return to course materials table of contents

2 Elna Griggs is a principal with the firm Ellis, Carstarphen, Dougherty & Griggs in Houston, Texas. She has experience in complex multiparty litigation, including the defense of toxic tort, environmental, products liability, and premises liability lawsuits.

3 Section 111 of the Medicare, Medicaid, and Schip Extension Act A Practical Primer Table of Contents I. What Is the Medicare Secondary Payer Act ( MSP )? II. What Is Section 111 of the Medicare, Medicaid, and SCHIP Extension Act ( MMSEA )? III. Who Must Report under Section 111? IV. What Needs to be Reported? V. When Should the Reports Be Submitted? VI. What Is the Penalty for Failure to Comply with Section 111? VII. What Is the Effect of Section 111 on Our Practice? Section 111 of the Medicare, Medicaid, and Schip Extension Act... v Griggs v 523

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5 Section 111 of the Medicare, Medicaid, and Schip Extension Act A Practical Primer I. What Is the Medicare Secondary Payer Act ( MSP )? Enacted in 1980 and establishes Medicare s recovery right in situations where another entity is a primary payer Primary payer includes any entity that is or was responsible to make payments under a group health plan, workers compensation law or plan, automobile or liability insurance policy (including self-insured plan), and no-fault insurance Allows Medicare to seek reimbursement for any services where the primary payer should have paid 42 C.F.R allows Medicare to assert a direct cause of action against a primary payer for failure to reimburse Even though the MSP Act has existed for 20 years, it has rarely been enforced and Medicare generally has not effectively tracked payments by secondary payers All Medicare secondary payments are considered conditional with a right to reimbursement; Medicare has super lien and collection rights If a primary payer makes its payment to an entity other than Medicare (i.e., payment of settlement monies to a plaintiff) when it is or should be aware that Medicare has made a conditional payment, the primary payer must also reimburse Medicare even though it has already reimbursed the beneficiary or other party if the beneficiary or other party fails to reimburse Medicare within 60 days If Medicare has to file suit to enforce its right to recovery, damages may come into play II. What Is Section 111 of the Medicare, Medicaid, and SCHIP Extension Act ( MMSEA )? It is the mandatory reporting requirement which helps it enforce the MSP Act Signed in 2007, went into effect July 2009 III. Who Must Report under Section 111? Requires responsible reporting entities ( RRSs ) to submit certain information to the Center for Medicare and Medicaid Services ( CMS ) so that CMS can in turn determine primary versus secondary payer responsibility An RRE is primary payer or plan (i.e., anyone who funds a settlement, judgment, or other payment to a Medicare beneficiary); it is the obligation of the RRE to identify Medicareeligible claimants and report data to the CMS concerning those claimants Information must be provided for any claim involving a Medicare beneficiary where medicals are claimed and/or released Section 111 of the Medicare, Medicaid, and Schip Extension Act... v Griggs v 525

6 IV. What Needs to be Reported? Information on all claims relating to Medicare beneficiaries except: claims where the settlement amount is less than $5000 (Note: this threshold will continually drop with time; threshold drops to $2000 in 2011 and drops to $600 in 2012) claims where all the exposure relating to the settlement precedes December 5, 1980 Medicare eligible persons include: individuals 65 years or older recipients of SSDI for 24 consecutive months recipients of SSDI for one month or more for treatment of ALS recipients of treatment for kidney failure/end state renal disease ( ESRD ) individuals who have paid into the Medicare system for at least ten years It is the responsibility of an RRE to determine a beneficiary s Medicare status. Each RRE must register with the Medicare coordinator of benefits contractor ( COBC ) and is given a unique ID. RREs can run their queries using Social Security numbers, DOB, gender, and name to determine eligibility through the COBC. Cannot rely on plaintiff s assertion More than 130 pieces of data must be reported once it is determined that a claim falls under the reporting requirement. Required information is very detailed and includes DOB, SSN, plan information, settlement amount, PID, ICD-9 codes (external cause of injury, diagnosis, etc.) Reporting must be done electronically V. When Should the Reports Be Submitted? RREs are assigned a seven-day period each quarter for reporting The date of settlement, judgment, awareness, or other payment triggers reporting; must report during the next assigned window after this date CMS has extended the date for the first production of NGHP input files to January 1, 2011 (from April 1, 2010) As it stands, if settlements are completed before October 1, 2010, they are not required to be electronically reported per section 111. If the TPOC date is on or after October 1, 2010, then it will need to be reported during the first quarter of (TPOC = Total payment obligation to the claimant) Reporting is also necessary when an RRE has assumed ongoing responsibility for medical payments on or after July 1, 2009 VI. What Is the Penalty for Failure to Comply with Section 111? $1000 for each day of noncompliance with respect to each claimant Additional penalties at law There is currently no set process regarding how CMS will enforce penalties 526 v DRI Annual Meeting v October 2010

7 VII. What Is the Effect of Section 111 on Our Practice? Start gathering information as soon as possible first name, last name, DOB, gender, HICN, or SSN and determine at the outset of the claim whether a claimant is a Medicare beneficiary Tailor discovery to gather necessary information interrogatories query the CMS database communicate with plaintiffs counsel; coordinate Medicare obligations amend CMOs to require certain information if possible Inform mediator ior court of Medicare issues Obtain final demand letter from MSPRC Ensure Rule 11 and settlement agreements have language relating to Medicare liens, indemnity, and so forth. Settlement agreements and releases should be clear on who is responsible for curing any liens and also the timing of funding Determine whether funds should be held in trust pending resolution of any liens Keep in mind that the MMSEA reporting requirements are new to everyone. There is no set procedure yet for dealing with all the questions that may arise. CMS.com is a great reference tool for keeping up with the latest changes and dates Section 111 of the Medicare, Medicaid, and Schip Extension Act... v Griggs v 527

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