Yesterday, CMS filed its unpublished proposed rule, (for publication February 18, 2020), regarding civil money penalties for Medicare Secondary Payer MMSEA Section 111 Reporting. Public comments must be received no later than 60 days post publication.
We have been awaiting these rules since the implementation of the reporting requirements in 2009, following the passage of the Medicare Medicaid SCHIP Extension Act of 2007 (MMSEA).
Prior comments were solicited by CMS and considered as part of an Advanced Notice of Proposed Rule Making (ANPRM) in December 2013. In response to these public comments, CMS has proposed the following:
1. CMS will not assess civil monetary penalties when a non-group health plan (NGHP) demonstrates a documented good faith effort to comply, and CMS will reserve the right to audit responsible reporting entities (RREs) for compliance with the requirements.
2. CMS has agreed to define non-compliance under the following definition:
a. Failure to report when an entity is required to report
b. Failure to report all Medicare beneficiaries who are/were plan participants (GHP) or claimants (NGHP)
c. Failure to report when medical care was either claimed or released (as a part of a settlement, judgment, award, or other payment)
3. In terms of the Amount of Civil Monetary Penalties (CMP), CMS proposes that it would assign CMP amounts based on the number of times, meaning individuals, a particular entity fails to report, or fails to report correctly.
4. CMS proposes “safe harbors” or tolerances for file submissions that contain certain types of errors or mistakes and will consider performance against those tolerances over time so that a few error submissions do not necessarily result in a CMP and will be reviewed in the context of demonstrated “good faith”.
5. CMS agrees to a formal Appeals process whereby parties subject to CMP would receive a formal written notice at the time penalty is proposed.
a. The recipient would have the right to request a hearing with an Administrative Law Judge (ALJ) within 60 calendar days of receipt.
b. Thereafter, any party may appeal the initial decision of the ALJ to the Departmental Appeals Board (DAB) within 30 calendar days.
c. The DAB’s decision will become binding 60 calendar days following service of the DAB’s decision, absent petition for judicial review.
6. CMS agrees the rule would apply prospectively only.
7. CMS agrees with a 5-year statute of limitations as required by 28 U.S.C. 2462. Under 28 U.S.C. 2462. CMS may only impose a CMP within 5 years from the date when the non-compliance was identified by CMS.
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