Practical Aspects of Medicare Reporting for Defendants

For self-insured defendants, reporting settlements to the Center for Medicare Services (CMS) is now a standard part of any settlement. While almost all insurers are very familiar with this process, some self-insured corporate defendants—particularly those without significant litigation—may not be familiar with the process or requirements. The following are some practical pointers for defense counsel to consider in connection with any personal injury settlement:

1. Does your client have a process for handling CMS reporting under Section 111 of the Medicare, Medicaid and State Children's Health Insurance Program Extension Act (MMSEA) of 2007?
   1. 42 U.S.C. § 1395y(b)(2)(B)(9)(B)(8) requires liability insurers and self-insured entities to report certain information for any claimant who is entitled to Medicare benefits. Most self-insured entities are familiar with this process, but if not you should communicate with your client about the process and its requirements—including the timing requirements which can trigger penalties if violated. General information about defendants’ reporting obligations and the process are available in the CMS Policy Guidance on MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting.
2. Is the claim reportable?
   1. The current threshold is $750, so more than likely the claim will be reportable.
3. Does plaintiff agree with the information the defendant will submit?
   1. The easiest way to avoid any defense-side Medicare complications is to communicate with plaintiff’s counsel about the information that will be reported before it is submitted. Exchange with plaintiff’s counsel the date of injury, the total payment obligation to claimant date (which is the date the payment obligation was established), and the applicable International Classification of Diseases (ICD) -9 or ICD-10 codes (these are the billing codes that CMS uses to identify the claims that are subject to the settlement). Or, since in many instances the defendant will not know which specific billing codes were utilized in the treatment of the plaintiff for any alleged injuries and which are the subject of the settlement, have plaintiff’s counsel provide the ICD codes for reporting purposes.
      
      Particularly in instances where there were multiple treatments or a complicated medical course for a plaintiff, there can be entirely reasonable but different views on the injury date and relevant ICD codes. Addressing these items with plaintiff’s counsel before submission by a defendant can avoid complications that may arise when CMS attempts to recover payments from the plaintiff or requires plaintiff to make payment for future medical treatment based on a liability settlement.

Most self-insured defendants and plaintiff’s counsel are well aware of defendants’ Section 111 reporting obligations, but raising the reporting obligation, the process and the specific information to be submitted will simplify the settlement process.