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.
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 | firstname.lastname@example.org
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.
Casualty Insurers And Drug Plans: Medicare Secondary Payer Ties That Bind Under SPARC Act
May 22, 2017
Medicare Ties That Bind Casualty Insurers And Drug Plans
May 18, 2017
Broad Application of Medicare’s Mandatory Insurer Reporting Requirements to Non-U.S. Property & Casualty Carriers Flouts Supreme Court Limitations on Extraterritorial Reach of U.S. Law
Insurance Coverage Law Report
Setting the Record Straight: Dispelling Medicare Myths in Tort Settlements
DRI's for the Defense
Supreme Court Affirms Opportunities and Uncertainties for Health Care Contractors
Bloomberg BNA's Health Care Policy Report
July 16, 2012
Medicare and the Confusion over Insurer Reporting
December 20, 2011
Humana v. GlaxoSmithKline Verdict: Why Casualty Insurers Should Care
Property Casualty 360
July 28, 2011
Improving the MSP Recovery Process
July 19, 2011
No Port in a Storm? Crucial Safe Harbor Still in Doubt under New Medicare Section 111 Reporting Requirements
Insurance Coverage Litigation Reporter
December 4, 2009
New Medicare Reporting Requirements for Self-Insured Businesses Kick In: Many Questions Remain Unanswered
The Metropolitan Corporate Counsel
October 8, 2009
Liability and Workers' Compensation Carriers Be Warned-Deadlines Loom for New Medicare Reporting Requirements that Carry Steep Civil Money Penalties
Bloomberg Law Reports
February 18, 2009
Section 111 Bulletins
Section 111 Bulletins
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: 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 Releases Revised NGHP User Guide
September 1, 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
Related News & Insights
- AlertSection 111 Bulletin: Updates on Medicare Recoupment from Casualty InsurersSeptember 18, 2017Kathryn Bucher, Margaret D. Thomas
- AlertSection 111 Bulletin: Upping Your Section 111 Game – Medicare Secondary Payer Developments Say It’s TimeJune 21, 2017Kathryn Bucher, Dorthula H. Powell-Woodson, Margaret D. Thomas
- ArticleCasualty Insurers And Drug Plans: Medicare Secondary Payer Ties That Bind Under SPARC ActMay 22, 2017Kathryn Bucher
- AlertSection 111 Bulletin: Summer 2016 Round Up of Section 111 and Medicare Secondary Payer Developments for Liability InsurersAugust 24, 2016Kathryn Bucher