Presented at DRI's Drug and Medical Device Seminar, May 2010

I.    MMSEA Mandatory Reporting: Medicare Wants to Know

Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 ("MMSEA" or "Section 111"), 42 U.S.C. §1395y(b)(8), obligates entities that resolve certain claims with Medicare beneficiaries to report details of the settlement to the federal government.  Non-compliance can result in $1,000 per day, per claim penalties.  The agency that administers Medicare and runs the reporting program, the Centers for Medicare and Medicaid Services, ("CMS") issued an updated Section 111 User Guide in February 2010 that delays reporting deadlines but requires time-sensitive actions to demonstrate compliance.  See MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting User Guide, Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation User Guide, Version 3.0 (February 22, 2010) ("User Guide"), available at http://www.cms.hhs.gov/mandatoryinsrep/.

Section 111 requires entities to (1) determine if a settlement or payment is reportable; (2) confirm whether a claimant is a Medicare beneficiary; (3) identify whether the insured or its insurer has the reporting responsibility; and (4) collect and submit information on reportable settlements.  Reporting entities should be cognizant of state and federal privacy and confidentiality obligations implicated in the reporting process, and looming issues related to the Medicare Secondary Payer (“MSP”) program.

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