Q&A from Final Rule for Civil Monetary Penalties for Section 111 Reporting Webinar
By: Kristina Bonanno, Esq.
On October 16, 2023, Sanderson Firm hosted a webinar addressing the Final Rule for Civil Monetary Penalties for Section 111 Reporting. Many great questions on Section 111 Reporting were raised during the webinar, but due to time constraints, we were not able to address all the questions received. We thought it would be helpful to share the questions that were asked and our responses.
Please see a full list of the questions received below as well as our answers:
Q: Plaintiff attorneys will tell us they don't want to use our Med Pay - but then over a year later submit bills and now say that they do. ORM reporting is now late. Suggestions?
A: Per the NGHP User Guide, Chapter 3, the trigger for reporting ORM is the determination to assume ORM by the RRE, which is when the RRE learns that the beneficiary has received (or is receiving) medical treatment related to the injury or illness sustained. Required reporting of ORM by the RRE does not necessarily require the RRE to have made payment for Medicare-covered items or services when the RRE assumed ORM, nor does a provider or supplier necessarily have to have submitted a claim for such items or services to the RRE for the RRE to assume ORM. Even if the plaintiff is not using your med pay ORM should still be reported as Y or Yes at the time you become aware of treatment for the injury and this would avoid late reporting.
Q: Noncompliance - Reporting ORM 1 year from date of loss or of from date of Medicare beneficiary eligibility? What if a date of loss is 1/1/2021 but the claimant doesn't become Medicare eligible until 3/15/24? This makes you late reporting?
A: Section 111 reporting is not applicable to non-Medicare beneficiaries. So, in this example, reporting is not required because the claimant won't become a Medicare beneficiary until March of next year.
Q: Isn't late TPOC 135 days after settlement not 1 year? My response file flags TPOCs over 135 days as late reports now.
A: Under the Final Rule, a TPOC is only deemed late (non-compliant) if it is not reported within 365 days (1 year) of the settlement. However, it is best to report as soon as possible to avoid possible non-compliance; thus, having your claim system provide early alerts may be beneficial. From the technical response flagging perspective, currently the flag is listed as 135 days. It will be interesting to see if CMS updates this flagging timeframe to better align with the Final Rule.
Q: Will the two recovery contractors be the ones monitoring and reviewing for CMPs or will it actually be CMS?
A: The Final Rule does not specify who will handle the auditing of submitted records, but we assume it will be the CMS Benefits Coordination & Recovery Center (BCRC) since the BCRC manages the technical aspects of the Section 111 data submission process for all Section 111 RREs. We will keep our subscribers updated as we learn more about the auditing process for CMPs when it occurs in 2024.
Q: Has accurate reporting of ICD codes been excluded from the scope of errors subject to penalties?
A: Per the Final Rule, CMS will not impose CMPs for incorrect ICD 9/10 coding. There are only two CMP-eligible events, untimely reporting of settlement (TPOC) and untimely reporting of acceptance of Ongoing Responsibility for Medicals (ORM). However, incorrect ICD coding may result in coordination of benefits issues with the Medicare beneficiary and could also result in conditional payment recovery efforts by CMS for unrelated conditions. Therefore, we still highly recommend that RREs report accurate ICD 9/10 codes for the purposes of coordination of benefits and conditional payments made by Medicare.
Q: I get fined due to non-reporting- can I report outside the normal quarterly assigned reporting period for that RRE to make the records current and resolve the issue?
A: Off-cycle reporting is permitted, but the Final Rule does not create a civil money penalty safe harbor for correcting reporting errors through off-cycle reporting. In other words, even if an NGHP off-cycle reports to correct prior errors, this will not insulate the NGHP from civil money penalties.
Q: What is considered a "record", 1 claim? so they are only going to audit 1,000 claims a year over all RRE's?
A: A "record" means 1 individual Medicare beneficiary claim. The Final Rule confirms that CMS will audit 1,000 total records per year, proportionately split among GHPs and NGHPs.
Q: Have you seen any suits by a beneficiary for an RRE reporting with errors that have held up receipt of benefits?
A: We are not aware of any case law where an individual Medicare beneficiary files a lawsuit against an NGHP/RRE where the NGHP/RRE's incorrect Section 111 reporting caused Medicare to deny payment of the Medicare beneficiary's medical expenses.
Q: Question regarding male and female. Is there any discussion at the federal level to change this to male, female, non-binary? Is there a way to report if they won't confirm whether they are male or female, but we have the SSN/DOB?
A: CMS has 3 values they will accept the gender field 0 = Unknown, 1 = Male, 2 = Female
Q: Expanding upon Safe Harbors, does the following only apply if the individual or their representative confirmed the information in writing, or would CMS accept a file being documented with the individual or their representative confirming it verbally? (i.e. they provided the information during a phone call and the file was documented with the discussion rather than it being submitted in writing). "if the individual or their representative clearly and unambiguously confirm that they will not provide the requested information, the NGHP is no longer required to continue further follow-up attempts"
A: To take advantage of the safe harbor, the Final Rule requires NGHPs to make at least two attempts to obtain the required information by mail or electronic mail, and the third attempt may be made by telephone, mail, electronic mail, or some other reasonable method. The Final Rule's reference to "telephone" and "some other reasonable method" suggests that verbal confirmation will suffice. Even still, for purposes of civil money defense, we recommend confirming the discussion in writing to the claimant and/or their representative and documenting this to your file for a minimum of 5 years to coincide with the 5 statute of limitations.
Q: Should an RRE report ORM = Y then a termination date, if the date of injury and the ORM termination date is prior to the person being a Medicare beneficiary? Or is this scenario not even reportable?
A: Section 111 reporting is not required in this scenario. Section 111 reporting is only required for Medicare beneficiary claimants.
Q: Do you know if the Pre-Notice of the CMP will just go to the RRE or will it also go to the recovery agent?
A: The Final Rule is silent on whether the Pre-Notice CMP will be delivered to only the RRE, or to both the RRE and its recovery agent. Of course, we hope that a copy of the CMP will also be delivered to the recovery agent as is the case with conditional payment debt disputes and appeals.
Q: Can they fine you for something prior to this ruling or just going forward?
A: CMPs will only be imposed prospectively. The Final Rule becomes applicable one year after its publication date, which will be October 11, 2024. A CMP may not be imposed until at least one year after the later of either the applicability date, October 11, 2024, or the settlement date (TPOC) or assumption of ongoing responsibility for medicals (ORM) date that the NGHP is required to report.
Q: If handling a third-party claim and the claimant is attorney represented, who is responsible for the medicare/medicaid liens? Ex. If atty states they will handle all liens, does that let the carrier off the hook?
A: As a matter of best practice, we recommend that the carrier handle Medicare reimbursement directly with Medicare rather than allowing the claimant or claimant’s attorney to handle it. This is because federal regulations (e.g., 42 CFR § 411.24) allow Medicare to seek recovery from an insurance carrier, attorney, or any other parties involved in the settlement if the claimant or their attorney does not reimburse Medicare for conditional payment amounts.
Q: What is the DOL for ORM if the individual is not eligible for Medicare on the date of loss but then subsequently become eligible while receiving treatment related to the claim?
A: If the individual is not currently a Medicare beneficiary, there are no reporting requirements. If the individual becomes a Medicare beneficiary while receiving treatment related to the claim, then ORM becomes reportable. At that point, the effective date for ORM is the date of injury, regardless of when the beneficiary receives the first medical treatment or when ORM is reported.
Q: If the RRE fails to report at all by mistake (as opposed to an untimely reporting) what triggers the start of the 5 year statute of limitations?
A: The statute of limitations will not trigger until the record is reported to CMS. This prevents an RRE from never reporting and having the statute of limitations expire without penalty.
Q: Does this apply to valid Stowers demand as well?
A: The Final Rule and Section 111 reporting timeliness applies to all settlements involving Medicare beneficiaries. If a Stowers demand is accepted and the claim is settled with a Medicare beneficiary, the settlement must be reported.
If you have any other questions regarding the Final Rule or would like to learn more about Sanderson Firm’s Section 111 Reporting and Section 111 Audit services to get in front of civil monetary penalties being imposed next year in 2024, please contact us.
