NGHP Town Hall Teleconference – Possible New Movement on the SMART Act and Reoccurring Themes
Jesse Hamby
August 5, 2013

CMS conducted a Town Hall Teleconference for Mandatory Reporting and Liability (including Self-Insurance), No-Fault Insurance and Worker’s Compensation on July 25, 2013.  Callers used the opportunity to enlist substantive CMS responses regarding overall Medicare Secondary Payer Compliance.  CMS intimated to expect some new updates in the near future, while still addressing a number of recurring themes.

SMART Act Update

  1. Right now, the requirement under the SMART Act that an ANPRM is being done with respect to civil money penalties under Section 111 is on the Regulatory Agenda, which you can check on for more information.

Future CMS Alerts

  1. CMS intimated that they are looking to finish an alert on questions regarding amended complaints.  CMS is not required to prove causation for purposes of MSP recovery.  However, they hinted they would be providing guidance for instances in which the claimant alleges all types of injuries, but ends up settling for only a couple injuries and when the complaint has been amended to only include these injuries.

Section 111 Reporting

  1. RREs are no longer required to report claimant information in general, but can if they so choose. CMS makes the distinction between the claimant and the injured party (which they use this SSN to search for Medicare entitlement status) and clearly state that the injured parties’ information must be reported.  However, if RREs choose to report the claimant information, then all the claimant fields other than the claimant TIN filed must be appropriately populated in order to avoid the generation of errors and the rejection of that claimant.
  2. Use of no INJ code in WILL still be acceptable under ICD-10 reporting under very specific and limited situations (refer to Section in Chapter 4 of the current non-GHP Use Guide).  CMS also is continuing to look at and work on whether and to what extent they can give relief from reporting for many things that are currently being reported with the no INJ code.  These situations include employment practices, liability insurance, (DNR), or directors and officers liability insurance, professional liability insurance, other than medical malpractice insurance, fiduciary liability insurance, errors at admissions insurance and consortium issues. These situations typically do not have medicals associated with it despite the fact that there are releases that are releasing medicals. CMS indicated they are working on an alert specific to the consortium issue as well.
  3. E-Codes will no longer be required for reporting, but optional, these are the codes that indicated the cause of the alleged injury (Field 15). However, if the code is not valid it will result in errors.
  4. ICD-9 9599 or 9598 will not be considered valid codes as of October 2013 (these codes were typically used to report claims in which the injured party resulted in death at the scene or en route to the hospital).  RREs must instead investigate in order to determine the injury sustained which ultimately lead to the fatality as these codes are not among the ICD-10 codes.  Additionally, if a claim ware reported prior to October 2013 using these codes, any updates reported after will have to remove these codes or they will be rejected.
  5. The response time currently for a MMSEA queries is currently 14 days (although more likely it will returned within a week).  There is no way to expedite a particular submission by request. However, if an RRE needs to determine the Medicare entitlement status of a specific individual or small group of individuals, they do have the capability to query them manually via the online beneficiary lookup tool or via phone with the COBC.  Also, CMS will not be expanding queries to include Part D plans as it is not included under Section 111 reporting requirements and other issues are involved (i.e. HIPPA).

Ongoing Reporting Medicals Questions

  1. In relations to ORM reporting, if a state fund (in the example they use New York’s second injury fund, SIS) reimburses a portion of the medical and the ORM drops below the $750 threshold, the RRE still should NOT delete as they still continue to have an ORM.  The claim may only be deleted if it determined that there had never been ORM and it was reported erroneously. If and when the ORM terminates, the RRE should submit an ORM termination date but the records should remain on the file.
  2. COBC letters to RREs intimating that they received information indicating the ORM may have been terminated are standard form letters sent out from the COBC.  They have received information from the beneficiary indicating such.  REEs should respond by either providing the COBC with the termination date or if the ORM is still ongoing, can simply ignore the letter.  If the COBC receives no response, the records will remain open, as the COBC should not update the records without the RREs consent.
  3. Physician letter of attestations are required to terminate ORM if the ORM is being terminated for that reason and does not cease otherwise, i.e, under state law, benefits have exhausted, etc …  However, the RRE does not need to submit the letter to CMS, but report it through their normal reporting for Section 111, but CMS reiterated that the RRE has to have the letter and maintain it as documentation if there is any question in the future.
  4. ORM liability insurance, for example a local government who is self-insured treats claims under a specific dollar amount like a no-fault, i.e., does not investigate, needs to be reported as an ORM liability claim and not no-fault because it is still liability insurance.
  5. Situations where, for example a hospital pays the bills to all outside doctors that were related to a mistake, is not a risk management write-off but an ORM and must be reported as such and not separately reporting it on the Section 111 as a write-off.

Denial of Medicare Benefits because of MSP record

  1. Beneficiaries who submit claims to Medicare and they are denied as a result of an MSP records, have the ability to appeal that denial (i.e. in instances where it’s clear the current claim is not related to the MSP record).
  2. Beneficiaries that are being denied services by physicians or other entity because of a MSP records (not the denial of a claim), CMS denies having an absolute fix.  They recommend referring the beneficiary to the Med Learn articles previously mentioned in Town Hall Teleconferences.  The other option is to provide the beneficiary with a letter with information regarding the open reported, the ORM and their specific injuries for them to provide to these providers. Although this is also NOT a guarantee fix.

Clinical Trial Reporting

  1. Situations involving clinical trials in which injuries or complications result out of the trial and the clinical trial sponsor or other entity essentially promised in the agreement for the trial or another agreement, they would pay for all care relating to the trial including injuries or complications needs to be reported. Which means it only needs to be reported when the injury or complication arises, not specifically for each Medicare beneficiary who is involved in the trial.  CMS specially noted that those not complying with the Section 111, passed back in 2007, is off the hook, but the ANPRM mentioned, that is on the regulatory agenda, addresses this issue as well and those not complying are putting themselves at risk.

General Notes:

–          Cases in which there are multiples defendants should speak to another and try to use the same Date of Loss when reporting.  The DOL is the date on which the incident occurred, not necessarily the date the started treatment.

–          Reiterates the reporting requirement of loss of consortium claims when the spouse is a Medicare beneficiary and receives settlement.

–          Instances in which deceased beneficiary are not showing up in a manual query on COB website.  Typically for beneficiary who have been deceased more than a decade and the issue is being fixed.  But, still report in the meantime.