CMS PROPOSED RULEMAKING MMSEA Section 111 Mandatory NGHP Insurer Reporting

Just last week, we advised of a Notice of Proposed Rulemaking from the Center for Medicare and Medicaid Services (CMS) that could usher in the beginning of the Liability Medicare Set Aside (LMSA) process. Now, CMS has announced yet another proposed rulemaking regarding MMSEA Section 111 Mandatory Non-Group Health Plan (NGHP) insurer reporting called “Civil Monetary Penalties and Medicare Secondary Payer Requirements.” The reporting process requires that Responsible Reporting Entities and/ or their reporting agents, report all claims involving Medicare beneficiaries to CMS on a quarterly basis.

Five years ago, CMS issued the same proposed rulemaking and solicited thirty-four comments during the comment period. The prevailing concern expressed involved relief from the $1000 per claim per day civil monetary penalty under the SMART Act. The industry asked for penalty relief and safe harbors where “good faith” efforts to report claims timely involving Medicare beneficiaries is demonstrated. For example, under the existing rule, if a single claim is not reported for a period of 365 days, that penalty would cost $365,000. Any aggregate of non-reported claims over longer periods of time, could potentially bankrupt a primary payer.

The timing of the proposed rule making is the same as the one regarding LMSAs, in September of 2018 and following the release of the updated MMSEA Section 111 Non-Group Health Plan (NGHP) User Guide, Version 5.4 in October 2018.

Under the regulation, besides the obvious protection of the Medicare Trust Fund, penalty money is designated for use in funding the Children’s Health Insurance Program (CHIP), so the stakes are high. We will continue to monitor these issues and provide updates as they occur. Until then, we will await Q3 of 2019 to learn what CMS proposes.

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