Mandatory Insurer Reporting in 2013 – Changes Ahead?

John Miano Our industry is now two years into the mandated production (liability – one year) of MMSEA Section 111 Reporting. Although we don’t have crystal balls to see into the future, the matters identified below will likely shape changes to MMSEA Section 111 reporting in 2013.

New CMS Contract Strategy
During the June 2012 NGHP Town Hall teleconference, CMS advised of the new contractor’s strategy to combine the coordination of benefits and recovery operations center to handle front end Section 111 and recovery issues. New tools or improvements related to Section 111 processes would not be available, they said, until CMS implements the new strategy. Until CMS issues a public advisory, it won’t be possible to know when it may be employed.

Transition to ICD-10 Coding
HHS announced the final rule delaying compliance with transition to ICD-10 coding from October 1, 2013 to October 1, 2014. CMS has not provided guidance regarding how the transition from ICD-9 to ICD-10 coding will be addressed for MMSEA Section 111 reporting.

In December 2012, the House and Senate passed the Saving Medicare and Repaying Taxpayers (SMART) Bill and it was signed into law by President Obama on January 10, 2013. Details regarding SMART can be found in Russell Whittle’s blog here. In brief, MMSEA Section 111 reporting will be affected by changes to the standard for the application of civil penalties and requires the Secretary of HHS to set forth circumstances under which sanctions will not be imposed. The Bill also sets forth a statute of limitations indicating that the United States may not bring an action regarding payment owed unless a complaint is filed not later than three years after the date of the receipt of notice of a settlement, judgment, award, or other payment for cases brought on or after the timeframe set out in the legislation. There are many components to this Bill; promulgation and implementation will likely occur over the course of 2013 and beyond.

Mass Tort Claims
Since 2009, CMS has struggled to understand Mass Tort claims and how the industry processes those claims. Attempts had been made to convene a Mass Tort group but to date, guidance regarding timely reporting and compliance has not been forthcoming. Given the current fiscal climate in the United States we may anticipate CMS reprioritizing this matter.
As these or other matters develop which affect MMSEA Section 111 reporting, Gould & Lamb will keep our clients well informed. Should you have questions, please contact your Gould & Lamb Representative or Gould & Lamb MMSEA Compliance Manager.

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.

Click Here to Download the MSP Compliance Protocols User Guide from Gould and Lamb

Download the MSP Compliance Protocols user guide today!

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 Section 111 Reporting for All Insurance Types

Disrupted BeJohn Mianonefits – Disturbing Trend or Manageable Change?

As we approach the end of the first quarter of mandated MMSEA Section 111 reporting for all insurance plan types, change persists, perhaps with unintended results.

A busy February saw Secretary Sebelius’ press release announcing an ‘intent to delay (the) ICD-10 Compliance Date’ and a subsequent CMS Alert confirming the use of ICD-10 for purposes of MMSEA Section 111 reporting (and the yet- to- be determined implementation delay), created some interest.  However, attention has been steadily focused on the important issue of CMS denial of non-accident related benefits.

The incidence of injured party questions to responsible reporting entities (RRE’s) and claim administrators indicating MMSEA Section 111 reporting  regarding denial of Medicare benefits even for non-accident related Medicare benefits are increasing. This increase is evidenced by discussion in recent industry group and NGHP Policy and Technical teleconference and discussions.

CMS plans to provide instruction to Regional Offices to aid in improvements. As an RRE or claim administrator, what remedy, if any, should be offered to the injured party whose benefits have been denied? Suggestions include the following:

  • Due diligence; determine if the record had been reported to CMS per MMSEA Section 111.
    • Confirm CMS record acceptance and key data reported.
    • Review the following:
      • On-going responsibility for medical (ORM) value Yes or No,
      • ORM Termination Date,
      • Total payment obligation to the claimant (TPOC) dates and amounts (settlement, judgment or award),
      • ICD-9 Diagnosis codes
    • Misreported information should be corrected and resubmitted during the RRE’s next available quarterly report.
      • COBC EDI Representative cannot assist in modification of the claim record.
        • The RRE may immediately terminate ORM by calling the COBC Call Center, as specified in the NGHP User Guide, Section 11.8.
          • Extreme caution should be exercised to ensure ORM Termination is appropriate prior to calling.
  • Advise the injured party to utilize the normal appellate process with Medicare regarding denied treatment or benefits.
    • Provide the injured party with supporting documentation confirming accepted Section 111 data per an organization’s established protocols and procedures.
  • Provide a point of contact to expedite questions from CMS and/or medical providers.

Denial of non-accident related Medicare benefits is tied to data quality issues but is not limited to an organization’s claim record.  Quite often, improperly coded provider bills or CMS processing miscues result in denial of benefits and payment. Likewise, the injured party may have claims with other RREs which may also be responsible for affecting benefits.

Where there are numerous potential external factors that can affect the injured party’s non-accident related benefits, the best recommendation for RREs or claim administrators is to verify reported data to the injured party and seek to improve the quality of data submitted to CMS per MMSEA Section 111.

NGHP Mandatory Insurer Reporting User Guide(NGHP) User Guide Version 3.3

About the Author: John Miano is the Manager of Reporting Services for Gould & Lamb, LLC. His primary responsibility is directing the implementation of CMS Section 111 reporting programs for our clients. He has over 20 years experience in the Property and Casualty Insurance Industry and is currently an active committee member of the International Association of Industrial Accident Board Committees (IAIABC). He is also a former Executive Board Member of the Association of Workers Compensation Claim Professionals (WCCP) and is a Board Certified Workers Compensation claim adjuster (CWC).

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 CMS Section 111 Reporting Agents – Partner or Representative?

Qualities of a Successful Reporting Agent

John MianoMany Responsible Reporting Entities (RREs) have contracted with Reporting Agents for exchange of Section 111 Mandatory Insurer Reporting (MIR) data with the Center for Medicare and Medicaid Services (CMS).  However, as we approach the 4th quarter of 2011, and the first quarter of 2012 is looming in the not too distant future, RREs should be preparing to report liability claims to CMS, perhaps for the first time.  This is the perfect time for RREs to re-evaluate their relationship with their current Reporting Agent.

Some Reporting Agents may claim mastery or successful CMS MIR submissions but are they merely an “official reporting representative” or do they offer additional key value as partner in Medicare compliance?

Here are 5 key attributes of a good Reporting Partner:

  1. Flexibility
  2. Some RREs self administer claims and may also utilize third party claim administrators to handle and report claims. A Reporting Partner should be capable of consolidating data from multiple data sources and/or differing data types and formats. This flexibility is critical to expedient implementation of timely reporting. Does your Reporting Agent require you to register and maintain several RRE IDs due to lack of this flexibility?

  3. Technical Processes
  4. Selecting claim records for timely initial and subsequent MIR submission per CMS requirements and event tables is a difficult process. A Reporting Partner provides automated file selection and reporting of customer submitted, qualified claim records for quarterly reporting. What are your Reporting Agent’s automated and manual processes for CMS Section 111 Reporting and submission to CMS? Should the Reporting Agent filter, change or modify customer data prior to CMS submission, do you know what’s been changed? Is your claim, risk or matter management system still the system of record?

  5. Compliance Tools
  6. Provision of CMS threshold communications and record acceptance rates assist RREs with compliance performance information only after data has been submitted to and processed by CMS. A Reporting Partner empowers customers by providing management tools and data validation prior to proactively managing CMS submissions and MIR performance. Reporting Agents provide Query and Claim Responses from CMS, is this enough?

    Where CMS Section 111 reporting identifies RREs as the primary payers, Medicare Secondary Payer (MSP) compliance issues (such as exposure to conditional payments) may arise requiring timely recommendations and services. A Reporting Partner offers its customers a selection of MSP compliance plans which allow for proactive identification of exposure and assignment of services designed for the customers desired handling procedures. Does your Reporting Agent have the capability to identify MSP exposure or the expertise to provide necessary services for proactive MSP compliance?

  7. Communication
  8. Communication regarding customer data and CMS processing is critical to successful MIR performance. Questions ranging from field definitions, data mapping, operations training and responses to CMS should be easily resolved via e-mail or telephone. A Reporting Partner provides central points of contact regarding technical, operational and legal questions for expedited communication and response. If you currently have a question or issue, do you have a single point of contact at your current Reporting Agent you would call?

  9. Leadership
  10. MIR requirements, definitions, and specifications continuously change as CMS becomes more familiar with the industry and what data they wish to collect. A Reporting Partner is one who actively participates in special programs, CMS Town Hall teleconferences, is an industry advocate, and supports groups to build relationships, expertise and drives results. Is your Reporting Agent passive, passing along CMS Alerts and memoranda and simply responding to change?

The customer and RRE faces exposure in complying with MMSEA Section 111 Reporting and the MSP Act. How well does your Reporting Agent perform and what have they done for you lately?

These 5 attributes should help you determine whether your Reporting Agent is measuring up to the exacting standards that compliance requires and if they are ready for to begin reporting liability claims to CMS at the beginning of the first quarter of 2012.

About the Author: John Miano is the Manager of Reporting Services for Gould & Lamb, LLC. His primary responsibility is directing the implementation of CMS Section 111 reporting programs for our clients. He has over 20 years experience in the Property and Casualty Insurance Industry and is currently an active committee member of the International Association of Industrial Accident Board Committees (IAIABC). He is also a former Executive Board Member of the Association of Workers Compensation Claim Professionals (WCCP) and is a Board Certified Workers Compensation claim adjuster (CWC).

Important CMS Alert Update on File Processing Changes

John Miano, Manger of Reporting ServicesIn early April, the Centers for Medicare/Medicaid Services CMS released two CMS Reporting Alerts regarding file processing changes:

April 1, 2011 CMS Alert Update TIN Reference Response File and Address Validation

April 5, 2011 CMS Alert Upgrade of Query Files and HEW Software

TIN Reference Response File and Address Validation Alert

File Processing CMS AlertsCurrently, CMS validates the TIN Reference Address Records and returns Compliance Flag Codes in the Claim Response File, depending upon the error detected.

Beginning in the third quarter of  2011, CMS will conduct a thorough validation of the TIN Reference Address Records.  Basic field validations will be performed to ensure proper field population.  Each record will also be run through postal software for standardization and confirmation that a valid and deliverable US address had been provided.

Rejection errors pertaining to TIN Reference Address Records will be provided in the new TIN Reference Response File.  Error Codes include issues related to individual address fields and instances when an address could not be validated as a deliverable US address.

Rejection of the TIN Reference file as indicated per the new TIN Reference Response file will result in CMS rejection of claim records in the associated Claim Input file.

CMS has not announced a test date regarding this new Response file.

Upgrade of Query Files and HEW Software

The second CMS Alert details the transition from the current Medicare Query Function, which utilizes version 1.2 and 2.0 of the HIPAA Eligibility Wrapper (HEW) format, to the new version 3.0.

Upgrade to Version 3.0 of the HEW software will be required by January 1, 2012. HEW versions 1.2 and 2.0 will be discontinued as of January 1, 2012 as well.

Test and production utilizing HEW Version 3.0 may be submitted as of October 1, 2011.

Note: Gould & Lamb Mandatory Insurer Reporting customers submitting data in the G&L proprietary file specification and/or via the GL-Service (f/k/a iService) will not be affected by the HEW software update.

For your reference, April 1, 2011 CMS Alert Update on October 2010 TIN Reference Response File and Address Validation, along with April 5, 2011 CMS Alert on Upgrade of Query Files and HEW Software are conveniently located in our Medicare Compliance Document Library under Resources and Forms.