In 2009, we assembled a multidisciplinary team of attorneys from our Insurance and Health Care practices to address the implementation of new Medicare reporting requirements for liability insurers (including self-insured entities), no-fault carriers, and workers’ compensation plans (collectively, Non-Group Health Plans or NGHPs) and Group Health Plans (GHPs) under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA). MMSEA amended the Medicare Secondary Payer (MSP) statute. Since 1980, the MSP statute has designated NGHPs and GHPs as primary payers when coordinating benefits with Medicare. “Section 111 reporting” facilitates the Centers for Medicare & Medicaid Services’ (CMS) recovery of past medical expenses (what are called “conditional payments” in MSP regulations), or its refusal to pay future medical costs, of Medicare beneficiaries who receive NGHP or GHP payments for the same bodily injuries or emotional distress.

CMS was slow to build its Section 111 program and lulled many into a minimum necessary compliance mode. Recent developments in Section 111 law and agency enforcement require that casualty and health care insurers review and update their Section 111 practices to recognize their MSP liabilities and minimize their MSP risks. These developments include recognition by a growing number of federal courts that Medicare Advantage (MA) Plans and Medicare Part D Prescription Drug Plans, just like CMS, may enforce their Medicare secondary payer status and, if necessary, under the private right of action granted by the MSP statute, sue NGHPs and GHPs for reimbursement of the Medicare plans’ primary payment of Medicare items and services.

MA Plans are private, managed care companies that compete for Medicare beneficiaries with the Original, fee-for-service Medicare program administered by the federal government. Part D Plans, also private entities, offer prescription drug coverage to Medicare beneficiaries insured by either Original Medicare or MA Plans. The new reality is that both MA Plans and Part D Plans are stepping successfully into the secondary payer recovery shoes of CMS; and with Section 111 reporting information shared by CMS, they are demanding reimbursement of mistaken primary payments from casualty and health care insurers.

We assist clients in understanding their Section 111 reporting and MSP reimbursement obligations, implementing effective regulatory compliance programs, structuring claims settlement to address MSP obligations, and, when necessary, appealing Medicare reimbursement demands. We work with both domestic and overseas casualty and health care insurers on a full range of matters, including:

  • Mediating Section 111 reporting and MSP reimbursement obligations between insured and claimant;
  • Negotiating settlement terms that (i) ensure claimant delivery of data required for Section 111 reporting, (ii) address responsibility for Medicare reimbursement, and (iii) avoid duplicative payment liability to claimant and Medicare;
  • Addressing liability for future medical expenses and whether to use, and seek CMS approval for, a Medicare Set-Aside (MSA) arrangement;
  • Identifying the correct “responsible reporting entity” (RRE) for settlements involving insured risk pools, self-insured retentions, excess liability insurance, mass torts, and/or trust administration;
  • Rejecting CMS’s misclassification of casualty insurance products (e.g., Accident & Health) as GHPs;
  • Analyzing the extraterritorial reach of Section 111 to overseas carriers;
  • Responding to Medicare reimbursement demands, including litigating administrative appeals;
  • Self-reporting MSP compliance challenges, including the misreporting of Section 111 information and the underpayment of primary payer responsibility; and
  • Anticipating and answering reimbursement demands of Medicare Advantage and Medicare Part D prescription drug plans.

Contact Us

Visit our Section 111 Bulletins for additional information and to review our archive of Section 111 publications covering major MSP developments since 2009, including "Setting the Record Straight: Dispelling Medicare Myths in Tort Settlements" published by DRI's for the Defense and "Upping Your Game – Medicare Secondary Payer Developments Say It's Time".

Kathryn Bucher, Chair
202.719.7530 | kbucher@wiley.law

Published Articles & Section 111 Bulletins

Our Health Care Practice publishes Section 111 Bulletins that provide timely updates addressing notable Town Hall discussions and other Section 111 developments. To sign up to receive these updates, click here

For any questions about the Bulletins, please contact, Kathryn Bucher.

Published Articles

Section 111 Bulletins

Section 111 Bulletins

Section 111 Bulletin: Upping Your Section 111 Game – Medicare Secondary Payer Developments Say It’s Time
June 21, 2017

Section 111 Bulletin: Summer 2016 Round Up of Section 111 and Medicare Secondary Payer Developments for Liability Insurers
August 24, 2016

Section 111 Bulletin: “Struck by a Duck:” P&C Insurers Confront New ICD-10 Codes
November 24, 2015

Section 111 Bulletin: CMS Final Rule Establishing Right of Appeal for Medicare Secondary Payer Determinations Raises Important Issues for Liability Insurers
March 6, 2015

Section 111 Bulletin: Round Up of Notable Medicare Reporting and Reimbursement Developments for Property and Casualty Insurers
February 13, 2015

Section 111 Bulletin: New Section 111 Guidance Amends Decades-Old CMS Practice of Identifying Medicare Beneficiaries by Full Social Security Numbers
September 18, 2014

Section 111 Bulletin: Summer Round Up On Notable Medicare Reporting And Reimbursement Developments For Property And Casualty Insurers
September 8, 2014

Section 111 Bulletin: CMS Holds First Town Hall in Five Months for Non-Group Health Plans; Seeks Public Comment on Section 111 Reporting Penalties
December 20, 2013

Section 111 Bulletin: Medicare To Issue Mandatory Insurer Reporting Guidance On Amended Complaints, Specialty Line Reporting Exceptions, And SMART Act Regulations
August 1, 2013

Section 111 Bulletin: The Real Scoop on the Purported Insurer Duty "to Protect Medicare's Interest" and Pay for Future Medicals
June 28, 2013

Section 111 Bulletin: Revised NGHP User Guide Mandates Technical Reporting Revisions But Announces No Policy Changes
May 20, 2013

Section 111 Bulletin: Medicare Narrows Required Reporting By Insurers; Town Hall Reveals Disconnect With Insurers On Key Questions Regarding Pre-1980 Exposures
April 15, 2013

Section 111 Bulletin: Congress Passes Long-Awaited Reforms To The Medicare Secondary Payer Recovery Process, Including Elimination Of SSN Reporting, But Built-In Regulatory Delays Could Postpone Insurer Relief
January 4, 2013

Section 111 Bulletin: House Committee Moves SMART Act Forward; Medicare Reaffirms Position on Mandatory Insurer Reporting Under Accident & Health and Short-Term Travel Policies
September 25, 2012

Section 111 Bulletin: CMS Releases Revised NGHP User Guide But Fails To Provide Expected Guidance On Important Unresolved Section 111 Issues
July 6, 2012

Section 111 Bulletin: CMS Delays Issuance Of Revised NGHP User Guide; New Entities To Replace COBC And MSPRC
June 21, 2012

Section 111 Bulletin: CMS Solicits Comments Defining Obligations To "Protect Medicare's Interests" When Settlement Involves "Future Medicals"
June 15, 2012

Section 111 Bulletin: GAO and Federal Court Weigh in on Section 111 Infirmities But It's Business as Usual for CMS During Town Hall Call
April 27, 2012

Section 111 Bulletin: Section 111 Town Hall Call Again Addresses MSP Recovery Rights of Medicare Advantage Plans Against Casualty Insurers
March 26, 2012

Section 111 Bulletin: First Section 111 Town Hall of 2012 Highlights Need for Further Clarification of Reporting Responsibilities and Frustration Over Improper Claim Denials for Which Insurers Are Taking the Heat
February 29, 2012

Section 111 Bulletin: CMS Dodges Tough Questions Regarding Medicare Benefit Denials and Perpetuates Confusion Over Reportable Amounts During Recent Section 111 Town Hall Teleconference
November 28, 2011

Section 111 Bulletin: CMS Town Hall Teleconference and Recent Alert Further Muddy the Waters on Section 111 Reporting and Mass Torts Issues
October 25, 2011

Section 111 Bulletin: CMS Confirms Another Delay Of Section 111 Reporting For "Certain" Claims Payments But Major Issues Remain Unsettled
October 5, 2011

Section 111 Bulletin: Section 111 Reporting Apparently Delayed For "Certain" Payments
September 30, 2011

Section 111 Bulletin: Further Delay Of Section 111 Mandatory Insurer Reporting Remains A Real Possibility
September 22, 2011

Section 111 Bulletin: Newly Issued Section 111 User Guide Leaves NGHP Insurers Demanding More From CMS
September 7, 2011

Section 111 Bulletin: CMS Releases Revised NGHP User Guide
September 1, 2011

Section 111 Bulletin: Congress Holds Hearing on Improving Medicare Secondary Payer Big Picture While CMS Remains Mired in Section 111 Reporting Details
July 7, 2011

Section 111 Bulletin: Court Denies Federal Private Right of Action to Medicare Advantage Plan Seeking to Step Into Secondary Payer Shoes of Medicare to Sue Liability Insurer
June 30, 2011

Section 111 Bulletin: CMS Solicits Industry Comments During "Mass Torts" Working Group Call and Promises to Fast-Track Guidance
April 15, 2011

Section 111 Bulletin: CMS Town Hall Adds To Confusion Over Section 111 Reporting Obligations Of Accident and Health Insurers; Controversy Emerges Over Insurer's "Duty To Protect Medicare's Interests"
April 8, 2011

Section 111 Bulletin: House Introduces Section 111 Reform Bill—If Enacted, Would Remove SSN Reporting Obligation, Create Safe Harbor Reporting Practices and Require Earlier Notice to Insurers of Final Amount Owed Medicare
March 24, 2011

Section 111 Bulletin: CMS Announces Date of "Mass Torts" Working Group Call and Addresses RRE Questions During Policy and Technical Town Hall Teleconference
March 11, 2011

Section 111 Bulletin: CMS Releases Long-Awaited Guidance for Foreign Insurers; Reporting Exception for Professional Liability Lines Remains Under Consideration
March 1, 2011

Section 111 Bulletin: More Delays and New Query System Announced at First Town Hall of New Year
February 14, 2011

Section 111 Bulletin: CMS Clarifies Delay of TPOC Reporting for Liability Insurers During December 9 Town Hall and Issues New Alerts
December 16, 2010

Section 111 Bulletin: CMS Delays TPOC Reporting Requirements for Liability Insurers By One Year; Other Alerts and November 10 Town Hall Clarify Existing Guidance
November 15, 2010

Section 111 Bulletin: CMS Revives Mass Torts Working Group and Previews New Section 111 Guidance
October 22, 2010

Section 111 Bulletin: CMS Announces "Major and Significant Changes" in Revised User Guide for NGHPs During July 28th Town Hall Teleconference
August 5, 2010

Section 111 Bulletin: June 30th NGHP Town Hall Teleconference: Confusion and Uncertainties over Deductibles Continue; No Progress on Significant Issues Awaiting Clarification
July 7, 2010

Section 111 Bulletin: June 10th CMS Teleconference Draws Many Questions on New Direct Data Entry Reporting Option
June 11, 2010

Section 111 Bulletin: CMS Announces Five New NGHP Alerts During May 27th Town Hall NGHP Teleconference
June 1, 2010

Section 111 Bulletin: April 28th Town Hall NGHP Teleconference Reveals No Major Developments in Agency Guidance
April 30, 2010

Section 111 Bulletin: March 16, 2010 Town Hall Teleconference Overview: CMS Takes Stock of Its To-Do List
March 17, 2010

Section 111 Bulletin: Legislative Fix Introduced in Congress to Section 111 Reporting Hurdles; Bill Also Seeks Broader MSP Reforms
March 12, 2010

Section 111 Bulletin: A Closer Look at Medicare's Significant Revisions to Mandatory Insurer Reporting Guidance for Property and Casualty Insurers
March 4, 2010

Section 111 Bulletin: CMS Significantly Revises Mandatory Insurer Reporting Guidance for NGHP Responsible Reporting Entities
February 26, 2010

Section 111 Bulletin: NGHP Reporting Pushed Back to First Quarter 2011
February 18, 2010

Section 111 Bulletin: January 28, 2010 Section 111 CMS Teleconference Summary
February 2, 2010

Section 111 Bulletin: Overview of CMS December 29, 2009 Alert for Foreign Insurers and January 5, 2010 "Town Hall" Teleconference
January 6, 2010

Section 111 Bulletin: December 15, 2009 Section 111 Teleconference Summary
December 16, 2009

Section 111 Bulletin: December 8, 2009 Section 111 Teleconference Summary
December 9, 2009

Section 111 Bulletin: November 17, 2009 Section 111 Teleconference Summary
November 19, 2009

Section 111 Bulletin: November 3, 2009 Section 111 Teleconference Summary
November 4, 2009

Section 111 Bulletin: October 22 Section 111 Town Hall Teleconference: Confusion Continues over 1980 Cutoff Date for MSP Liability and Collection of Social Security Numbers
October 30, 2009

Section 111 Bulletin: CMS Teleconferences of September 30 and October 6, 2009 Address Section 111 Registration Issues
October 7, 2009

Section 111 Bulletin: CMS Posts New Version of User Guide and Requests Public Comment on Draft Language Further Defining the Responsible Reporting Entity under MMSEA Section 111
August 10, 2009

Section 111 Bulletin: Long-Term Implications of Medicare Reporting Requirements and Reimbursement Liabilities for Casualty Insurers
July 28, 2009

Section 111 Bulletin: Medicare Reporting Requirements for Overseas Casualty Insurers
July 7, 2009

Section 111 Bulletin: CMS Provides Liability, No-Fault and Workers' Compensation Insurers More Time to Prepare for Mandatory Medicare Reporting
May 29, 2009

Section 111 Bulletin: CMS Clarifies Mandatory Medicare Reporting Requirements For Liability, No-Fault, and Workers' Compensation Insurers
April 20, 2009

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