20 Takeaways from Mandatory Reporting Penalty Webinar

Rafael Gonzalez, Esq.

On January 18, 2024, the Centers for Medicare and Medicaid Services (CMS) held its latest Medicare Secondary Payer (MSP) Civil Money Penalty (CMP) Non-Group Health Plan (NGHP) webinar. Lots of great insight and valuable information provided throughout the presentation. My 20 takeaways from the webinar are as follows:

1. The CMP Final Rule was posted to the Federal Register on October 11, 2023. The Rule became effective on December 11, 2023.

2. The Rule becomes applicable on October 11, 2024, the date after which the 365-day clock begins to run for when records must be timely submitted.

3. RRE compliance review period begins October 11, 2025. CMS will begin quarterly compliance audits on April 1, 2026, reviewing a random sample of new RRE records.

4. CMS will make all substantive decisions on CMPs. COB&R contractors may assist with data gathering and administrative tasks.

5. The Rule is prospective only. There will be no instances of retroactive enforcement related to non-compliance prior to implementation of the final rule.

6. The Rule provides no change to reporting requirements. The new rule does not add, remove, or alter any existing reporting requirements.

7. Compliance is based on timeliness of reporting. Random sample of new and accepted 250 cases per quarter will be reviewed.

8. The Rule uses a tiered approach to late reporting and per day/per file penalties. The total penalty for any 1 instance of noncompliance in a 365 day period is $365,000.

9. Late reporting > 1 year but < 2 years results in $250 (2024 inflation adjusted rate $357) per day per file CMP. 

10. Late reporting > 2 years but < 3 years results in $500 (2024 inflation adjusted rate $714) per day per file CMP.

11. Late reporting > 3 years results in $1,000 (2024 inflation adjusted rate $1,428) per day per file CMP.

12. If a particular case has both an ORM and a TPOC component, both must be reported to CMS.

13. Compliance is determined by comparing the date an ORM/TPOC record is accepted against the date CMS should have received the record.

14. TPOC compliance requires reporting TPOC date and amount within 1 year (365 days) of Settlement Date or Funding Delayed Beyond TPOC Date.

15. TPOC non-compliance means reporting after 1 year (366 days) from the date the RRE should have reported or updated TPOC date and amount.

16. If an RRE receives notice of proposed imposition of CMP, RRE will be afforded 30 days to provide mitigating evidence as to why a CMP should not be imposed.

17. The informal notice to impose a CMP will be emailed to RRE's authorized representative and account manager.

18. Should CMS reject the RRE's mitigating evidence, it will send its formal notice to impose a CMP via certified mail, and appeals process available.

19. A CMP will not be imposed when noncompliance is beyond the RRE’s control, ORM is in dispute, or CMS changes the reporting requirements/process without adequate notice.

20. A CMP may not be imposed if there is documented evidence of a beneficiary’s failure to provide requested information.

Conclusion

On October 11, 2023, CMS published its final rule on Medicare Secondary Payer (MSP) Mandatory Insurer Reporting (MIR) Civil Money Penalties (CMP). The final rule is effective on December 11, 2023, 60 days after date of publication in the Federal Register, and applicable on or after October 11, 2024, 1 year after its publication in the Federal Register. On January 18, 2024, CMS held its first webinar to review and explain the details of the CMP process and corresponding procedures.

Imposition of civil money penalties will change the landscape of Medicare secondary payer compliance. These CMS money penalties will transform compliance from an exercise in reporting without any consequences or ramifications into potentially the most expensive, costly, burdening, and consequential compliance program confronting group health plans, as well as liability, no-fault, and workers compensation non-group health plans.

These rules will force RREs to comply with the MSP Act and timely report the date of group health coverage, the date of acceptance of ongoing responsibility for medical, and the date of a settlement, judgment, award, or payment, so that CMS can then figure out whether Medicare is a primary or secondary payer, and if a secondary payer, whether it is owed reimbursement of any conditional payments from the primary payer.

About Rafael Gonzalez

Rafael earned his Bachelor of Science degree from the University of Florida, and his Jurisprudence Doctorate degree from the Florida State University. He has over 35 years experience in the legal and insurance industries. He is currently a partner in Cattie & Gonzalez, PLLC, a national law firm serving clients in all 50 states, focused on Medicare and Medicaid secondary payer law and compliance in auto, bodily injury, liability, mass tort, medical malpractice, nursing home, no-fault, products, workers compensation, and wrongful death claims and litigated cases.

Rafael writes and speaks about workers compensation, social security, medicare, medicaid, marketplace, mandatory insurer reporting, conditional payments resolution, set aside allocations, msa and snt administration, social determinants of health, and diversity, equity, and inclusion throughout the country. He can be reached at 844.546.3500 or at rgonzalez@cattielaw.com. With over 100,000 followers, you may also reach out to him on social media, as he is active on linkedin, twitter, facebook, instagram, and youtube.