On October 18 Tower’s Chief Compliance Officer Dan Anders and Chief Technology Officer Jesse Shade presented an informative webinar on Section 111 reporting and the final rule on Civil Monetary Penalties for untimely reporting. As shared in our post, these range from $250 per calendar day to $1,000 for each calendar day of non-compliance. Dan defined Section 111 reporting and covered the history of the penalty regulation before digging into the details and effects on payers. Here are some highlights:

Key dates

Penalties only apply to claims on and after December 11, 2023. Additionally, only 1,000 claims a year – from Group Health as well as Non-Group Health Plans – will be audited. The Centers for Medicare and Medicaid (CMS) will not issue penalties before October 11, 2024.

Dan advised that RREs should ensure that Ongoing Responsibility for Medicals (ORM) and Total Payment Obligation to the Claimant (TPOC) are reported in a timely fashion (within 135 days) in the quarterly file submission closest to the dates.

 Triggers for reporting

• Acceptance of ORM
• Termination of ORM
• Total Payment Obligation to the Claimant (TPOC)

Although all three milestones require reporting, there is no penalty for untimely reporting of termination of ORM. (However, if termination is not reported, an RRE could receive repayment demands after it is no longer liable to pay for medical treatment.)

Penalty process

The first penalty notification is informal and gives the Responsible Reporting Entity (RRE) 30 days to respond with any mitigating evidence.  If CMS doesn’t receive a response or accept the explanation, a formal notice will be issued.  RREs can pay the penalty or appeal it to an Administrative Law Judge.

Dan suggested examples of mitigating information and outlined the appeal process.  He also provided hypothetical cases that illustrate what could and would not risk one of these penalties.

Prevention

While the chance of receiving a penalty is relatively small, why risk it at all?  Compliance steps:

• Query for Medicare-eligible claimants every month
• Document attempts to obtain missing data (CMS prescribes the number and type of attempts.)
• Report ORM and TPOC within the next quarterly file submission

How Tower Helps

Jesse Shade demonstrated several powerful tools in Tower’s Section 111 portal that make it easier for RREs to comply with all aspects of Section 111 reporting.  Through the portal, RREs gain insight into individual claims or groups of claims and can:

• See errors that must be fixed before CMS can accept a file
• Drill down into specific error codes in order to correct them in the claims software
• Identify claims that could require ORM or TPOC reporting
• Find Medicare-eligible claims with open ORM that could be closed.
• Run and download reports to share with colleagues.

Your organization does not use Tower’s Section 111 reporting platform? Consider having Tower audit your Section 111 reporting program. This will identify the potential for penalties and reveal other issues that could lead to unwarranted conditional payment demands.

Finally, some Q&As

Who receives the notice of penalty?

 The RRE, of course.  We will also advocate that the reporting agent, Tower, receive a copy of the penalty notice, both informal and formal.

Are defense attorneys or other attorneys required to report Medicare beneficiaries?

There are no duties under the regulation for the attorney. This is specific to the RRE and claims handler. An attorney could be involved in tracking social security numbers or other claimant data for the RRE.

We have been advised that those enrolled in Medicaid are exempt from Section 111 reporting requirements. Is that correct?

That is correct; this only applies to Medicare.  However, if a claimant is a dual beneficiary enrolled in Medicare and Medicaid, then there would be a reporting obligation based on the Medicare enrollment.

What happens if the claimant doesn’t report the incident in a timely manner?

Interesting question.  In this case, the RRE could be reporting ORM for an injury that happened over a year earlier.  Or if a claim was initially denied but later accepted, perhaps due to a judicial decision, there could be an ORM reported more than a year after the date of injury. This seems like an explanation that CMS would accept and why the informal notice and response process is so important.

Do you still have questions about Section 111 reporting or a specific claim?  We are happy to help and like a challenge.  Please contact Daniel.Anders@TowerMSA.com.