Practices  |  Health Care

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.

Unparalleled Expertise

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.

Contact Us

Kathryn Bucher, Chair
202.719.7530 |

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News & Insights

News & Insights

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

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

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

Casualty Insurers And Drug Plans: Medicare Secondary Payer Ties That Bind Under SPARC Act
May 22, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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