In 2007, Congress passed, and President George W. Bush signed into law, Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). It amended the Medicare Secondary Payer (MSP) provisions of the Social Security Act (42 U.S.C. 1395y(b)) to provide for mandatory reporting by group health plan (GHP) arrangements and by liability insurance (including self-insurance), no-fault insurance, and workers' compensation laws and plans (non-GHPs).
MMSEA indicated that "effective July 1, 2009, applicable plans, including (1) Liability insurance (including self-insurance); (2) No-fault; and (3) Workers' compensation laws or plans must: (A) Determine whether a claimant is entitled to Medicare benefits; and, if so, (B) report the identity of such claimant and provide such other information as the Secretary may require to properly coordinate Medicare benefits with respect to such insurance arrangements in the form and manner (including frequency) as the Secretary may specify 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)."
Interim Exempt Reporting Thresholds
Although originally intended to apply to all cases where the claimant is a Medicare beneficiary, irrespective of the amount of benefits paid or value of settlement, on March 20, 2009, the CMS Office of Financial Management/Financial Services Group published an alert for non-GHP Responsible Reporting Entities (RREs) addressing interim reporting thresholds. The alert defined "Ongoing Responsibility for Medicals" (ORM) as the RRE's responsibility to pay, on an ongoing basis, for the injured party's (Medicare beneficiary) medicals associated with a claim.
The alert also defined "Total Payment Obligation to the Claimant" (TPOC) as the dollar amount of a settlement, judgment, award, or other payment in addition to/apart from ORM. The alert made it clear that for liability insurance (including self-insurance) and workers' compensation cases for TPOCs dates of July 1, 2009, through Dec. 31, 2010, TPOC amounts of $0.00-$5,000.00 are exempt from reporting; for TPOCs dates of Jan. 1, 2011, through Dec. 31, 2011, TPOC amounts of $0.00-$2,000.00 are exempt from reporting; and for TPOCs dates of Jan. 1, 2012 through Dec. 31, 2012, TPOC amounts of $0.00-$600.00 are exempt from reporting.
The Revised Implementation Timeline
As for insurer reporting, although originally indicated to start on July 1, 2009, for non-GHPs, on Sept. 5, 2008, the Centers for Medicare and Medicaid Services (CMS) announced a new implementation timeline for the Mandatory Insurer Reporting (MIR) program. That memorandum indicated that after being provided with some time to develop their systems, register with CMS, and test their systems with CMS, all liability insurance (including self-insurance), no-fault insurance, and worker' compensation RREs had to submit their first production files to the Coordination of Benefits Contractor (COBC) by Jan. 1, 2010.
However, on May 11, 2009, the CMS Office of Financial Management/Financial Services Group published an alert for liability insurance (including self-insurance), no-fault Insurance, and workers' compensation RREs, extending the registration period and mandatory reporting. The alert indicated that the registration period for non-GHP RREs had been extended. More significantly, however, the alert indicated all RREs had to submit their first live production file no later than their assigned submission window for the April-June calendar quarter of 2010.
Conclusion
With pressure from industry, and the realization that they were not ready for MIR, on March 29, 2010, the CMS Office of Financial Management/Financial Services Group published its latest revised MIR implementation timeline. As of March 29, 2010, CMS has indicated that as of Jan. 1, 2011, all non-GHP RREs must submit their initial claim input production files to the COBC according to assigned file submission timeframes for their RRE IDs, and that therefore as of April 1, 2011, all non-GHP RREs must be reporting production claim input files on a quarterly basis.
Once up and running, this MIR process will give the federal government key information about any liability insurance, self-insurance, no-fault insurance, or workers' compensation claim that has any ties to a specific Medicare beneficiary. Once this mandatory insurer reporting process is consistently recovering information about the responsible entity, date of accident, description of the injury, nature of medical treatment, diagnosis codes, date and amount of settlement, as well as name and address of representatives, Medicare will be able to consistently identify with specificity and accuracy those cases in which Medicare's interests must be taken into consideration with regard to past conditional payments and future Medicare set asides.
Rafael Gonzalez is CEO of The Center for Medicare Set Aside Administration, LLC in Clearwater, Fla. He will moderate a panel discussion entitled "The Bold New World of Taking Medicare's Interests Into Account" on Wednesday, Aug. 18, at the FWCI 65th Annual Workers' Compensation Educational Conference and 22nd Annual Safety and Health Conference in Orlando. Conference information is available at www.fwciweb.org.
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