Our Approach As most plaintiff attorneys have had to learn, Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 imposes reporting obligations on insurers in settlements involving current Medicare beneficiaries. The Center for Medicare and Medicaid Services (CMS) is presently in the "testing phase" for their protocol with Coordination of Benefits Contractors. During this time there have been many updates and alerts including the recent release of the Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation User Guide Version 3.0. While most of this information is not germane to the role of the plaintiff attorney, some of it is helpful in determining what is or will be required and when.
CMS has again pushed back the first reporting date for live "claim input files", this time from April 1, 2010 to January 1, 2011. CMS has pushed back the deadline but asked defendants and insurers (referred to as "RREs" or Responsible Reporting Entities) to continue with system testing and development. The new timeline essentially gives CMS personnel and RREs some extra time to more fully understand the guidelines and to test their systems.
Keep in mind that January 1, 2011 is a deadline, not the recommended starting point. As we approach the January 1, 2011 deadline, plaintiff attorneys will continue to see more and more RREs requesting the required information about plaintiff's for reporting purposes. Unless the next version of the CMS User Guide states otherwise, defendants are still obligated to request information about the plaintiff for settlements during 2010. This suggests that a measure of cooperation from plaintiff attorneys will be increasingly necessary since identification of Medicare beneficiaries cannot occur without a taxpayer identification number or health insurance claim number from the plaintiff.
MMSEA 111 has caused significant confusion to settling parties - and that confusion has led to many RREs overstepping the requirements of the new regulations and requesting information about the plaintiff to which they are not entitled. In cases involving multiple defendants, plaintiff attorneys may have the same information requested several times. In some cases these could all be legitimate requests, but plaintiff attorneys need to know how to identify with whom they are required to share information. CMS requires that all RREs involved in the case report even if only a single entity pays at the conclusion of a case.
Hopefully the extra time given RREs will help resolve much of the current confusion. Further "Alerts" which should provide additional guidance to RREs should be coming from CMS in the very near future. Being knowledgeable of the reporting requirement will help plaintiff attorneys balance the need to protect their client's privacy with the need to help the defense insurer meet their obligations. The penalties on the defense for noncompliance are far too serious for them to be willing to settle and pay a claim without knowing that they have met their reporting requirement. Stay tuned, as the details of the new reporting requirement have shown to be ever changing.