Transcript Slide 1
2010 Medical Professional Liability Symposium MMSEA Section 111 Reporting: The Elephant in the Room? Chicago, IL ~ March 18 & 19, 2010 MMSEA Section 111 Reporting: The Elephant in the Room? Moderator: Jim Blinn, MBA, Principal, Advisen Ltd. Panelists: Samuel D. Carucci, Esq., US Casualty Claims Manager, Allied World Assurance Company Paul Lavelle, President, LVL Claims Services LLC Mark Popolizio, JD, Vice President of Customer Relations, NuQuest/BridgePointe Lindsay Turner, Esq., Senior Associate, Wiley Rein LLP Session Overview • Overview of MMSEA Section 111 • The Challenges of Section 111 • Claims Issues and Medical Professional Liability Concerns • Open Discussion Overview of MMSEA Section 111 (Medicare, Medicaid, and SCHIP Extension Act of 2007) Mandatory Insurer Reporting Lindsay Turner Wiley Rein LLP [email protected] www.wileyrein.com/section111 Chicago, IL ~ March 18 & 19, 2010 Why are you here? • You fear those $1,000 a day penalties for non-compliance with Section 111 • You know Section 111 will change your company’s claims handling and settlement practices • You’ve heard CMS has changed the rules AGAIN • You were assigned the coveted job of Section 111 Coordinator Why did Congress Mandate Section 111 Reporting? 1980 Medicare Secondary Payer (MSP) Statute made P&C Insurers (also called Non- Group Health Plans or NGHPs) the primary payers Statute permits recoupment of Conditional Payments from: • Medicare beneficiaries or their counsel • Providers who receive payment from insurer settlements • Private Insurers Conditional Payments occur when Medicare pays because • It doesn’t know an NGHP claim exists or that the claim has been paid • The NGHP claim won’t be resolved anytime soon (Cont’d) Why did Congress Mandate Section 111 Reporting? • Problems Remain: CMS has had limited success pursuing recovery of Conditional Payments from beneficiaries Medicare seldom learned about NGHP settlements/claims payments NGHPs have had little incentive to identify themselves as primary payers or have not been aware of claimant’s Medicare beneficiary status Insufficient federal funds to ferret out NGHPs • The Latest Fix: Section 111 Reporting MMSEA Section 111: A Quick Overview • Who reports? Responsible Reporting Entities (RREs) – typically the Insurer or Self-Insured Entity • What is reported? All settlements, judgments, awards and other payments made to Medicare beneficiaries • As compensation for/in exchange for release of: medical expenses Typically arising out of claims for bodily injury But also claims for pain and suffering/emotional distress (Cont’d) MMSEA Section 111: A Quick Overview • Why? Medicare may have paid medical expenses related to these claimed injuries • Both lump sum payments and payment of future medicals must be reported TPOC: Total Payment Obligation to the Claimant ORM: Ongoing Responsibility for Medicals Structured settlements/Medicare Set Asides not required What Insurers? What Policies? • Section 111 requires “Applicable Plans” to report • Why? Applicable plans are the primary plans under the MSP Statute and Medicare wants a roadmap to recover conditional payments • For NGHPs this means: Liability carriers (including PL lines) and self-insured entities No-fault insurance carriers Workers’ compensation plans and carriers (Cont’d) What Insurers? What Policies? • Major Issues Remain Unresolved Potential exception for undefined professional lines Foreign insurers • CMS doesn’t have regulatory powers under the Constitution to require all foreign insurers to report Multiple Defendant/Mass Tort Settlements • Who reports? • Claims payments excluded by 1980 MSP cut-off date? No-Fault Policies • CMS may be sweeping other policy types under this umbrella Reporting Timeline • NGHPs do not begin reporting until First Quarter 2011 (previously Second Q 2010) • Push Back of Dates Triggering TPOC and ORM Reporting: TPOC Settlements: On or after October 1, 2010 (previously January 1, 2010) ORM Settlements/Payments: Existing responsibility as of January 1, 2010 (previously July 1, 2009), regardless of initial date responsibility was accepted Who Must Report? RRE Determination • RRE determination is “fact and situational” specific • CMS’ RRE directives contained in the 2/24/10 “Alert” • Generally, RREs fall within the following classes: Carriers Self insurance • Deductible v. SIR key determinant per new RRE guidelines Reinsurance, excess, umbrella, etc. Fronting insurance Joint pools/JPAs State assigned claims funds Bankruptcy & liquidation • TPAs & RRE status • Role and limitations of Section 111 “reporting agents” • Specific issues and considerations Determining Medicare Status RREs required to determine CL’s Medicare status • However, Section 111 does: NOT provide the process or procedure to use NOT require CL and/or his/her lawyer to release necessary information to help make this determination NOT provide an informed consent provision. • Issues & Considerations RREs must develop practice and protocol directed at determining Medicare status CMS’ Query Function & Model Language • Operating Mechanics • Limitations • Safe Harbor & Due Diligence Protections? Section 111 “Reporting Triggers” & Exceptions • Section 111 Reporting – In general • When Must I Report? Two Reporting Triggers 1. 2. TPOC v. ORM TPOC reporting exceptions: • Total Payment Obligation to the CL ---- TPOC 10/1/10 Base Date On-Going Responsibility for Medical --- ORM 1/1/10 Base Date Interim Monetary Thresholds ORM reporting exceptions: • • • Qualified Special WC Section 111 “Reporting Triggers” & Exceptions Issues & Considerations Determining TPOC Date “Assuming” ORM “Terminating” ORM Look Back Period Risk Management Write Offs, Gift Cards, Good Will Gestures, etc. Mass Torts • Reporting ▫ Cost of reporting v. costs of not reporting ▫ Claim balance • Defense Counsel ▫ Collecting data ▫ Protecting notice • Settlements ▫ Use of trusts (468B) 17 Structured Settlements • Data Collection ▫ Use of a third party ▫ Resistance from plaintiff? • Future Medicals ▫ Future CMS and the never ending trip 18 Medical Professional Liability • The claim within a claim within a claim and multiple reporting. • How these cases will gum up the works. 19 Open Discussion Chicago, IL ~ March 18 & 19, 2010