- Health Care Risk Management and Regulatory Compliance
- Pharmacy Benefit Manager (PBM) Contracting
- Section 111 Insurer Reporting and MSP Reimbursement
Section 111 Insurer Reporting and MSP Reimbursement
We have assembled a multidisciplinary team of experienced attorneys from our Insurance and Health Care practices to address the complex issues arising from federal reporting requirements applicable to liability insurers (including self-insured entities), no-fault and workers’ compensation insurers, and group health plans under Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). Our lawyers also address long-standing but often overlooked obligations of insurers under the Medicare Secondary Payer (MSP) statute to reimburse Medicare for its conditional payment of medical expenses of Medicare beneficiaries.
The new regimen requires these insurers and self-insured entities to report electronically, on a quarterly basis, the resolution of most claims for bodily injury or medical expenses brought by Medicare beneficiaries or their representatives. The Section 111 reporting requirements were designed to alert Medicare to potential opportunities to recover payments it has made to Medicare beneficiaries in circumstances in which an insurer had the primary payment obligation under Medicare law. Implementation of the new requirements has been fraught with difficulty, however, because the Centers for Medicare & Medicaid Services (CMS) at the U.S. Department of Health and Human Services (HHS) stumbled repeatedly in its efforts to fulfill its statutory duty to issue guidance for reporting, and because the statutory scheme is based upon inherently flawed assumptions regarding third-party claim settlements and the information actually available to insurers and self-insured entities.
In an era of extraordinary federal budget deficits, actuarial failure in the Medicare program, and fundamental changes in the U.S. health care system, casualty insurers and self-insured businesses face difficult compliance challenges under MMSEA Section 111 and the MSP statute, and the likelihood of substantial disputes with the government regarding Section 111 reporting requirements, alleged violations, and MSP reimbursement obligations. The stakes may be significant, with statutory penalties of up to $1,000 per day, per claim for Section 111 reporting violations, and potential double damages in government actions to recover unpaid or disputed reimbursement demands. This reporting and reimbursement regimen has imposed increased costs and risks upon insurers, created financial incentives and rewards for Medicare, and introduced operational challenges for both.
Wiley Rein offers its casualty and health care insurer and self-insured clientele the broad-ranging experience of two national practices—Insurance and Health Care. We therefore offer a distinctive level of legal expertise to entities that must comply with Section 111. We have one of the largest insurance practices in the country representing a wide range of domestic and international property-casualty insurers and industry organizations in claims, regulatory and legislative matters of all sorts. And, as our Health Care Practice focuses almost exclusively on the representation of health care insurers and their affiliates doing business with the U.S. government, we understand well the risks and costs that accompany a mandated government reporting system, especially one that threatens significant daily penalties for each failure to report. Because of our experience defending group health carriers against significant MSP reimbursement claims asserted by Medicare, our frequent representation of insurers in a variety of high-stakes litigation, and our extensive experience in litigation against the U.S. government, we are ideally suited to assist insurers and self-insured entities in resolving or defending against the penalty enforcement actions and reimbursement claims that are likely to arise as the Section 111 program matures.
We assist clients in understanding their Section 111 reporting requirements and MSP reimbursement obligations, implementing effective compliance programs, and structuring settlement terms. Our clients that sponsor group health plans already are reporting claims data, and many of our casualty insurer and self-insured clients have registered or will soon be taking that step. As a result, we have worked with both domestic and overseas casualty insurers and group health plans on a full range of compliance and implementation issues, including:
- Understanding their reporting obligations under Section 111, including the importance of identifying the correct “responsible reporting entity” (RRE) and the unique issues presented by insured risk pools, deductibles, self-insured retentions, excess liability insurance, self-insurance, and mass torts;
- Corresponding with CMS regarding Section 111 implementation issues;
- Collecting required claims data not in their possession through discovery, informal exchanges, and settlement terms compelling disclosure;
- Analyzing the possible extraterritorial reach of Section 111 to overseas carriers;
- Self-reporting implementation challenges, including incorrect or incomplete data transmissions to CMS;
- Monitoring the expanding volume of updated, incomplete, and sometimes inconsistent CMS guidance, which we share through our Section 111 Bulletin;
- Addressing the impact of Section 111 and MSP obligations on claims handling, litigation, and settlement and the effect of CMS’s 2015 rule under the SMART Act that offers insurers some assistance in identifying the amounts they may owe Medicare before they settle claims alleging bodily injury or mental distress;
- Negotiating settlement terms that protect client interests in obtaining the information necessary for Section 111 reporting, allocating responsibility for any reimbursement due Medicare, and avoiding duplicative payment liabilities to the claimant and Medicare; and
- Responding to MSP reimbursement demands asserted by the government.
Because of the wide breadth of our Practice and client base, we understand the many diverse challenges that our clients face in implementing Section 111 compliance programs. We recognize that one client’s solution is not necessarily the answer for another client. We also understand from our years of work with the Medicare program that CMS is not intimately familiar with the casualty insurance industry. We therefore believe that there are opportunities to enter into dialogue with CMS regarding implementation and compliance issues.
News & Insights
News & Insights
- August 24, 2016 | AlertSummer 2016 Round Up of Section 111 and Medicare Secondary Payer Developments for Liability Insurers
- July 27, 2016 | New York, NY | EventAchieving Reasonable Expectations and Employing Effective Tactics in a Securities Class Action MediationAmerican Conference Institute’s National Forum on Directors & Officers and Management Liability
- June 28, 2016 | San Francisco, CA | EventAmerican Conference Institute’s 12th National Forum on ERISA LITIGATION
- June 8, 2016 | Atlanta, GA | EventPRIMA's 2016 Annual Conference
- June 7, 2016 | Atlanta, GA | EventPRIMA's 2016 Annual Conference
- June 7, 2016 | Atlanta, GA | EventPRIMA's 2016 Annual Conference
- November 24, 2015 | Alert
- March 6, 2015 | AlertCMS Final Rule Establishing Right of Appeal for Medicare Secondary Payer Determinations Raises Important Issues for Liability Insurers
- February 13, 2015 | AlertRound Up of Notable Medicare Reporting and Reimbursement Developments for Property and Casualty Insurers
- September 18, 2014 | AlertNew Section 111 Guidance Amends Decades-Old CMS Practice of Identifying Medicare Beneficiaries by Full Social Security Numbers
- September 8, 2014 | AlertSummer Round Up On Notable Medicare Reporting And Reimbursement Developments For Property And Casualty Insurers
- July 16, 2014 | AlertRichard McConnell and Kathryn Bucher Author Insurance Coverage Law Report Article on Limitations to Extraterritorial Application of Medicare Section 111 Reporting Requirements to Non-U.S. Property and Casualty Carriers
- July 2014 | ArticleBroad 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. LawInsurance Coverage Law Report
- December 20, 2013 | AlertCMS Holds First Town Hall in Five Months for Non-Group Health Plans; Seeks Public Comment on Section 111 Reporting Penalties
- August 1, 2013 | AlertMedicare To Issue Mandatory Insurer Reporting Guidance On Amended Complaints, Specialty Line Reporting Exceptions, And SMART Act Regulations
- June 28, 2013 | AlertThe Real Scoop on the Purported Insurer Duty "to Protect Medicare's Interest" and Pay for Future Medicals
- May 2013 | ArticleDRI's For The Defense
- May 20, 2013 | Alert
- April 15, 2013 | AlertMedicare Narrows Required Reporting By Insurers; Town Hall Reveals Disconnect With Insurers On Key Questions Regarding Pre-1980 Exposures
- January 4, 2013 | AlertCongress 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
- November 1, 2012 | Press Release
- October 25, 2012 | New Orleans, LA | EventWhen the Players Are All in—Successfully Resolving High Stakes Litigation in the Twenty-First Century (Section 111 Developments)DRI's 2012 Annual Meeting
- September 25, 2012 | AlertHouse Committee Moves SMART Act Forward; Medicare Reaffirms Position on Mandatory Insurer Reporting Under Accident & Health and Short-Term Travel Policies
- July 6, 2012 | AlertCMS Releases Revised NGHP User Guide But Fails To Provide Expected Guidance On Important Unresolved Section 111 Issues
- June 21, 2012 | Alert
- June 15, 2012 | AlertCMS Solicits Comments Defining Obligations To "Protect Medicare's Interests" When Settlement Involves "Future Medicals"
- June 8, 2012 | Press Release
- June 1, 2012 | Press Release
- April 27, 2012 | AlertGAO and Federal Court Weigh in on Section 111 Infirmities But It's Business as Usual for CMS During Town Hall Call
- April 27, 2012 | Press Release
- March 26, 2012 | AlertSection 111 Town Hall Call Again Addresses MSP Recovery Rights of Medicare Advantage Plans Against Casualty Insurers
- February 29, 2012 | AlertFirst 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
- January 18, 2012 | Press Release
- January 3, 2012 | Press ReleaseLaw360 Names Wiley Rein's Government Contracts, Insurance and International Trade Practices Among Its "2011 Groups of the Year"
- December 20, 2011 | ArticleInsurance Law360
- November 28, 2011 | AlertCMS Dodges Tough Questions Regarding Medicare Benefit Denials and Perpetuates Confusion Over Reportable Amounts During Recent Section 111 Town Hall Teleconference
- November 23, 2011 | Press Release
- November 1, 2011 | Press Release
- October 25, 2011 | AlertCMS Town Hall Teleconference and Recent Alert Further Muddy the Waters on Section 111 Reporting and Mass Torts Issues
- October 5, 2011 | AlertCMS Confirms Another Delay Of Section 111 Reporting For "Certain" Claims Payments But Major Issues Remain Unsettled
- September 30, 2011 | Alert
- September 22, 2011 | Alert
- September 7, 2011 | Alert
- September 1, 2011 | Alert
- August 30, 2011 | Press Release
- July 7, 2011 | AlertSection 111 Bulletin: Congress Holds Hearing on Improving Medicare Secondary Payer Big Picture While CMS Remains Mired in Section 111 Reporting Details
- June 30, 2011 | AlertSection 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 13, 2011 | Press ReleaseChambers USA Ranks Wiley Rein's Insurance Group in its Top Tier; Five Attorneys Receive "Leading Lawyers" Honors
- June 10, 2011 | Press ReleaseThirty Wiley Rein Attorneys from More than a Dozen Practice Areas Included as Best in Class by Chambers USA
- May 3, 2011 | Press Release
- April 15, 2011 | AlertSection 111 Bulletin: CMS Solicits Industry Comments During "Mass Torts" Working Group Call and Promises to Fast-Track Guidance
- April 8, 2011 | AlertSection 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"
- March 24, 2011 | AlertHouse 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 13, 2011 | Newport Beach, CA | EventComing to Terms with Healthcare Reform in the Travel Insurance Industry2011 UStiA Annual Conference
- March 11, 2011 | AlertSection 111 Bulletin: CMS Announces Date of "Mass Torts" Working Group Call and Addresses RRE Questions During Policy and Technical Town Hall Teleconference
- March 2, 2011 | Press Release
- March 1, 2011 | AlertSection 111 Bulletin: CMS Releases Long-Awaited Guidance for Foreign Insurers; Reporting Exception for Professional Liability Lines Remains Under Consideration
- February 14, 2011 | Alert
- August 4, 2010 | Press Release
- June 14, 2010 | Press ReleaseChambers USA Ranks Wiley Rein's Insurance Group in Its Top Tier; Five Attorneys Named "Leading Lawyers"
- September 14, 2009 | Press Release
Section 111 Bulletin
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.
“Struck by a Duck:” P&C Insurers Confront New ICD-10 Codes
November 24, 2015
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
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 Reporting Apparently Delayed For "Certain" Payments
September 30, 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
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