CMS Requests Public Comments on MMSEA Penalties Through ANPRM
Roy Franco
December 11, 2013

Today, CMS requested public comment through an Advanced Notice for Proposed Rulemaking (ANPRM) with regard to MMSEA Section 111 Penalties.  Earlier this year, President Barack Obama signed into law the SMART Act.  This law amended the Medicare Secondary Payer Act, and in particular required the Secretary of Health and Human Services to seek public comment on safe harbors for MMSEA Section 111 Penalties.  Such ANPRM was due this past March, but had been delayed for unclear reasons.  Notwithstanding, CMS has followed up on the SMART requirements, and public comments are due back to CMS no later than 2/10/2014.

“Safe harbors” will help protect Responsible Reporting Entities (RREs) from the unintended consequences of MMSEA Section 111.  For example, what happens when a claimant refuses to provide a liability insurer with his or her Social Security Number?  Prior to SMART, the answer would be such insurer would face a no-fault penalty of $1,000 per day, when CMS learned about the settlement, judgment or award.  SMART soften the penalty, but providing CMS with discretion of “up to” $1,000; and also required exceptions, such as that noted above.  If such a “safe harbor” was adopted by CMS, the liability insurer in the above example would incur no penalty.  Our job over the next 60 days, is to come up with other “safe harbors”. 
Franco Signor will be working on its public comments, and encourages all of our clients and readers alike to file their own.  We will also work within our position as a MARC steering committee and founding member to draft comments.  As we get closer, we will share our thoughts.
Now that the ANPRM is a reality, the “other shoe has dropped” and it is clear that CMS is serious about penalties.   To be prepared, we suggest you audit your MMSEA Section 111 data provider to see where you stand, and make any adjustments now, prior to enforcement.  Call us today to discuss your needs.  We have audited well over 1.3M claims, involving more than 1,100 RREs.  We are by far the most experienced and trusted source in this area.