House Passes Measure to Delay ICD-10 Transition

STOP THE PRESSES… Possible Delay in ICD-10 Transition

By voice vote on Thursday, March 27, the House approved another temporary (one-year) fix to prevent steep cuts in Medicare’s physician reimbursement scheduled to take effect March 31. It now moves to the Senate which is expected to take action within the next few days. The draft legislation does not address the problems with the Workers’ Compensation Medicare Set-Aside approval process. However, there is language that speaks to a possible delay in the ICD-9 to ICD-10 transition, which could impact the MMSEA Section 111 mandate for reporting ICD-10s.  Other key inclusions include a two year delay in the provision overturning two U.S. Supreme Court decisions that prevented state Medicaid agencies from recovering 100 percent of their medical payments from the proceeds of liability settlements involving Medicaid beneficiaries and at least a one-year delay Medicaid mandated that providers move from ICD-9 coding to much more complex ICD-10 coding which will have a significant impact on insurers data reporting and bill payment functions.

CMS Issued Alert

It was only on this past Tuesday, March 25, 2014, that the Centers for Medicare and Medicaid Services (CMS) published an Alert regarding ICD-10 Diagnosis Codes, which further tightens the list of acceptable codes for Mandatory Insurer Reporting (MIR) purposes.

ICD-10 codes beginning with the letter “Z” are related to factors influencing health status and contact with health services, and are considered invalid for MIR.  This includes all 19 Diagnosis Code fields as well as the Alleged Cause of Injury, Incident or Illness field.

MIR ICD-9 Codes for Free

The Alert also clarifies the use of ICD-10 codes beginning with the letters V, W, X and Y.  These codes are related to external causes of morbidity and mortality, and may only be populated in the Alleged Cause of Injury, Incident or Illness field, as long as they are not on the list of excluded codes in the NGHP User Guide.  Additionally, these V, W, X and Y codes are invalid for use in the 19 ICD-10 Diagnosis Code fields.

Gould and Lamb has applied the appropriate quality audits, alerts, and metrics to ensure our customers are compliant with the transition.  Should you have any questions regarding this or any other topic related to MIR, please contact your MMSEA Compliance Manager or our Reporting Services Department at mirservice.support@gouldandlamb.com or 866-672-3453 ext. 1122.

Additional details on the bill can be found here.

Oregon Court Finds Professional Liability Fund Not A Responsible Reporting Entity


Russell S whittle, Esq VP MSP ComplianceThe United States District Court for the District of Oregon, Portland Division recently published its opinion in the case of Oregon State Bar Professional Liability Fund v. United States Department of Health and Human Services and Kathleen Sebelius on March 29, 2012. At issue was whether the Oregon State Bar Professional Liability Fund (PLF), the insurer covering legal malpractice actions against Oregon attorneys, was an “applicable plan” required to report under Section 111 on the Medicare, Medicaid and SCHIP Extension Act as a Responsible Reporting Entity (RRE).

In July of 2010, the PLF wrote a letter to the Department of Health and Human Services requesting a formal opinion that the Reporting Act did not apply to the it. Secretary Sebelius responded by advising PLF that it was a “liability insurer” within the meaning of the Extension Act. The PLF then filed suit requesting a declaratory judgment that PLF was not an applicable plan, that the Secretary acted outside her authority in determining that PLF was an RRE, that the Secretary violated the Administrative Procedure Act in that determination, and that the District Court could review the Secretary’s decision concerning the PLF.

The Secretary moved for summary judgment arguing that the Medicare statutory scheme left no issue of material fact for the trial court. In short, the United States took the position that the Medicare Secondary Payer Act and the federal regulations empowering it were clear that the PLF, as a liability insurer, was subject to Mandatory Insurer Reporting.

In denying the government’s motion, Judge Marco A. Hernandez analyzed the role of professional liability insurance and made what appear to be several leaps of logic regarding its applicability to Medicare Secondary Payer issues and the reporting obligation. The court determined that PLF was, in fact, a liability insurer within the meaning of 42 USC 1395y(b)(2). However, the judge reasoned that because the insurance plan covers claims against attorneys who cause economic damage relating to the provision of legal services and does not cover claims of tortious conduct that result in bodily or emotional injuries the PLF does not become an RRE. Because PLF would “never have primary responsibility” for medical items claimed by a beneficiary, they are excused from the reporting obligation.

Interestingly, the judge acknowledged that a malpractice case “could” involve medical expenses paid conditionally by Medicare. However, he assumed that those injuries occurred as the result of the underlying accident or case being handled by the alleged negligent attorney. The judge failed to recognize that the nature of the malpractice alone could give rise to emotional or personal injuries. He further stated that the PLF does not cover bodily or emotional injuries. A close review of Medicare statutes and policy guidance indicates that insurance coverage is not what Medicare requires to be reported in a settlement involving a Medicare beneficiary but, rather, what is claimed and released in the process. Thus, if bodily or emotional injuries are claimed and released, the reporting obligation is triggered. Based upon a somewhat limited analysis of an automobile accident case, Judge Hernandez determined that the PLF was not the type of plan that Congress intended to saddle with the reporting obligation.

Based on the foregoing, the court determined that the alleged violation of the Administrative Procedure Act and whether the Secretary acted outside her authority were moot.

As of this writing, an appeal has not been filed by the United States. However, I fully expect that the decision will be appealed as the ruling seems to both misconstrue the arguments put forth by the United States and the legislative intent of the MMSEA. Judge Hernandez seems to assume that because he cannot envision a scenario in which Medicare’s interests would be raised by inadequate legal representation that they do not exist. A closer look at the intent underlying the MMSEA and the Medicare statutory scheme suggests differently.


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About the Author: Russell S. Whittle, Esq., is the Vice President of MSP Compliance for Gould & Lamb, LLC. In his twenty plus years of practice prior to joining Gould & Lamb, LLC, Mr. Whittle practiced primarily in the area of insurance defense, representing the interests of large insurers and employers in both workers’ compensation and general automobile liability matters.

Gould & Lamb is a global leader of MSA/MSP Compliance Services in the country, serving domestic and international insurance companies, third-party administrators and self-insured entities.

MMSEA Reporting What RREs Need To Know

MMSEA Reporting – What Every RRE Should Be Doing…

National VP Sales, Gould & LambI have been in sales for 20 + years; eight of them spent in the Medicare Compliance industry. Much of what I know about Medicare, Medicaid and the SCHIP Extension Act (MMSEA) Reporting has been learned in the field by helping clients choose the best compliance options for their particular circumstance. I am conservative in my opinions and always try to err on the side of caution, like many of my clients.

It is surprising how Responsible Reporting Entities (RREs) are looking at the exposure represented by  MMSEA reporting and how many are taking huge risks. As the required reporting deadline approached, it was evident that many RREs were not going to be ready in Quarter 1 of 2011 and an extension was a happy coincidence for them. I would not count on another chance like that in the future.

The latest round of MMSEA extensions has placed a good portion of the industry in limbo. Many RREs prepared for reporting were suddenly not required to do so for another year. This problem was compounded by the fact that many have exposure in multiple lines of insurance and were leery of bifurcating their reporting program. What are the options for reporting data for these RREs that are ready? What should you be doing as an RRE if you are not ready?

You’ve Missed the First Two MMSEA Boats; Don’t Miss This One

MMSEA reporting solutions were cheap to the market in 2009 and 2010; Mandatory Insurer Reporting (MIR) providers learned that they, for the most part, had “given” their most valuable product away and now are raising prices. The average MIR reporting solution in 2009 would have cost a client about $12,000 including the implementation fee. In 2011, you can double that cost. The point; if you have contracted for MMSEA reporting services, you are currently enjoying the lowest cost. If you are not contracted for reporting services; you should address the issue as pricing will continue to rise. Locking in your cost now will bring benefits in the future.

For those RREs that are currently prepared to report- what you are waiting for? Instead of dividing your reporting program, what valid reasons are there for not sending data to Medicare now? Common concerns brought to my attention are:

  • Telling Medicare Too Much; Too soon

This will not be a concern in claims that are not settled; Medicare Secondary Payer (MSP) rights ripen at settlement and only are addressed if the claim closes through Settlement, Judgment or Award. If the claim stays open, the reporting will not affect the outcome negatively. If you report the claim early and settle, Ongoing Responsibility for Medicals (ORM) is terminated but the Total Payment Obligation to the Claimant (TPOC) amount is not reported unless you choose to send the information voluntarily.

  • Medicare will come after us

If Medicare can, it will engage in rights of recovery for conditional payments but, that process cannot begin until the settlement or award is effectuated.

  • Will there be penalties if we report early? What if we miss something?

Medicare has stated they will accept early reporting from all lines of insurance and that penalties will not be assessed on liability claims with No Ongoing Responsibility for Medical until 10/1/2011. So, if the RRE is reporting voluntarily and misses a claim, there is no potential for penalty, according to CMS.

If I Voluntarily Report Claims Data to Medicare Now, What Will That Mean for My Program?

What RREs Need to Know on MMSEA ReportingGenerally, early MMSEA reporting will not create any new exposure for an RRE. It allows the RRE to learn the data gathering process and integrate the reporting steps into their daily claims handling processes. There are many required steps to timely reporting that effect claims handling. Introducing these steps into your program now will create a learning environment without penalty. This opportunity to submit Mandatory Insurer Reporting data to Medicare with no potential for penalty has been presented to the industry for the last time in the form of this extension. How will you take advantage of this extension?

The required submissions for the first period for Workers Compensation and No Fault Insurance are going well for many RREs. If an RRE is not prepared or has not sent data to Medicare, the window to send that input file is closing quickly. If the reporting solution the RRE has chosen has failed or is not ready to submit, contact your EDI Representative to explain your situation.  There are things that can be done to help reduce your potential exposure under MMSEA Section 111 if they are addressed early.

For Liability RREs, the MMSEA extension isn’t a favor. Medicare was unprepared to deal with several issues related to Tort claims. The extension gives time for Medicare to prepare a solution to address these issues and should allow for greater scrutiny of claims reported in 2012. Many RREs are ready to submit data and intend to do so to avoid exposure.

There is no “right” answer to the question whether to report now or wait until later. The RREs that are reporting early will have a distinct advantage over their competition. They will be able to inform their potential clients that their reporting solution works and can show that live data has transferred between the reporting agency and Medicare.

RREs that decide to wait to report are going to pay more in implementation fees and contracted reporting costs. A time crunch awaits RREs that delay their MMSEA reporting and, in all likelihood, Medicare will have penalty assessment protocols in place for those who fail to take advantage of the extension.

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CMS Reporting Penalty Will Be $1000 per Claim per Day

$1000 per Claim per Day Effective January 1, 2011

I normally do not like “scare-tactics” as a way to get our client’s attention.  However, I am making an exception to that philosophy in deference to the CMS upcoming deadline for Mandatory Insurer Reporting that will take effect on January 1, 2011.

John Miano is Gould and Lamb’s Manager of Reporting Services.  He is so passionate about his job and making sure our clients do not get caught in the CMS reporting penalty for non-compliance that I have to share a recent alarming article he wrote:

Written by John Miano, Manager of Reporting Services, Gould and Lamb

You’ve been here before; ready to commit but there’s concern. Your new partner is complex, demanding and you’ve been left waiting. You have made several attempts at getting his/her attention but the timing has never been right. Your partner just keeps ignoring you. Your peers tell you the relationship will never work…just forget about it.

Does this sound like a new episode of Jersey Shore?  Maybe, but it most likely describes the relationship of our industry with CMS reporting requirements for MMSEA Section 111 and the deadline for MIR compliance changes going into effect on January 1, 2011.

Gould and Lamb and our clients have been ready to commit to providing data for MIR in the past, only to have CMS push the mandate back, alter the rules and change specifications.

Even with these CMS delays, the Quarter 1 mandate is real. A sufficient number of Responsible Reporting Entities – RRE’s have provided data to CMS voluntarily to indicate that the industry is prepared.

Less than 30 days to have production data to Gould and Lamb for October 18th Query Input Deadline

What this means for Gould and Lamb’s MIR customers, RRE’s and Claims Administrators NOT currently in production is that it’s time to wrap up testing and move to production NOW!.

Medicare Eligibility of the injured party is the first of many criteria for MIR for CMS reporting. Therefore, Query Input files must be submitted to and Query Responses received from CMS timely to ensure sufficient preparation of MIR claim record data.

The query input file requires a small number of basic data such as the RRE ID, the injured party’s first name, last name, gender, date of birth and social security number. The injured party information should be as it appears on his or hers Social Security of Medicare Card to ensure the best chance of receiving an accurate response from CMS.

In short, a Reporting Group 1 RRE must have production data to Gould & Lamb by October 18, 2010 to ensure sufficient time for the Query Response and preparation of data for January 1, 2011 MIR reporting date. The non-compliance CMS reporting penalty is high – $1,000 per claim per day.

Time is short, do NOT get caught in CMS’s $1,000 per claim per day reporting penalty. Contact your Client Liaison Specialist at Gould and Lamb today at Onesource.support@gouldandlamb.com or 866.672.3453 Ext. 1122.


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Section 111 Reporting: Special Issues in Mass Tort Claims

Section 111 of MMSEA Reporting Requirements

With Mandatory Insurer Reporting set to finally take effect on January 1, 2011, the insurance industry, litigants, beneficiaries and legal practitioners continue to face uncertainty regarding Medicare, Medicaid and SCHIP Extension Act (MMSEA) Section 111 Reporting Requirements.

This is particularly true in mass tort litigation. Unlike a more standard tort claim, mass tort litigation presents unique challenges from both a practical and Medicare Compliance standpoint. Clearly, the burden on the parties to comply and cooperate with the mandatory insurer reporting process impacts all facets of mass tort litigation as it does all tort litigation.

No Section 111 Resolution

Section 111 reporting issues have not, by any stretch of the imagination, been resolved with respect to standard tort claims. Despite ongoing testing and receipt of data, CMS continually reworks the technical requirements of the reporting process and periodically clarifies critical elements of the reporting obligation such as the Ongoing Responsibility for Medical Care and what insurance products may be considered “no-fault” insurance.

Some unique issues raised in mass tort claims include proper and timely identification of Medicare status of class members, uncertainty regarding a specific product or products at issue in the litigation and the use of settlement funds or trusts.

Trusts sometimes make it difficult to identify the final recipient of funds and the amount ultimately received.  Even less guidance has been provided by Centers for Medicare and Medicaid Services (CMS) regarding mass tort claims. CMS has been accepting comments and suggestions for revision of the “Product Liability” reporting fields including limiting the level of detail required and revising the term “Product Liability” itself to more accurately reflect the underlying legal issues.

We eagerly await the release of User Guide 3.1 (now anticipated in July, 2010) which, CMS promises, will clarify their policy decisions and provide practical guidance on reporting for mass tort claims. They will include information on bankruptcy and insolvency, as well.

Responsible Reporting Entity for Section 111

As the responsibility for Section 111 MMSEA reporting lies with the Responsible Reporting Entity, Gould and Lamb recommends that the parties identify and acknowledge their responsibilities under the MSP at the earliest possible time. Making certain that the parties recognize that there is no question that Medicare will pursue recovery of conditional payments (made for medical care on behalf of a beneficiary when a primary payer is responsible) and that Medicare may impose obligations on the parties for future medical costs is imperative.

Medicare has demanded a seat at the settlement table in standard tort claims and mass tort claims alike. Understanding your responsibilities under Section 111 in conjunction with keeping abreast of CMS policies and procedures is the first step towards successful resolution of mass tort cases.

For additional information and updates on Section 111, please contact Gould and Lamb.


Click Here to Download the MSP Compliance Protocols User Guide from Gould and Lamb
Download Gould and Lamb’s Medicare Secondary Payer Compliance and Protocols User Guide

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