Insurers, self-insurers and claims administrators are busy figuring out how to comply with the Mandatory Insurer Reporting rules being developed by the Centers for Medicare and Medicaid Services (CMS) for group health, workers’ comp, no fault and liability claims of Medicare beneficiaries beginning October 1, 2009.

To date, CMS guidance on exactly which claims need to be reported has been –at best- fuzzy.

Certainly, claims in which payment to a Medicare beneficiary of a settlement, judgment or award is made on or after July 1, 2009 will need to be included in quarterly reports to the government.  But CMS has suggested in early drafts of reporting guidelines that it will want Responsible Reporting Entities (RREs) to also give information on claims in which the RRE has “accepted responsibility” for ongoing medical payments, presumably including claims in which there is no payment on or after July 1, 2009 and even- possibly- claims in which no payment of any kind has ever been made.

Two key problems faced by RREs in determining what claims to report are (A) how to determine if a claimant is a Medicare beneficiary and (2) how to determine which claims of Medicare beneficiaries to report.  Problem A will be resolved by CMS putting into effect a relatively easy system to confirm the Medicare status of claimants identified by the RRE and by the RRE doing a lot of work to get Social Security Numbers and communicate with its claimants to determine their Medicare status.

But without clearer guidelines from CMS on which claims of known Medicare beneficiaries must be reported, resolving Problem B is much more difficult.  “Accepted responsibility” for ongoing medical means different things to different people. 

If an undisputed workers’ compensation file or auto no fault file is opened for an individual entitled to have medical expenses from that injury paid for life, is that a file in which the RRE has “accepted responsibility” for ongoing medical even if no medical expense has yet been submitted to the RRE?

If a general liability insurer or self-insurer has a “med pay” policy (formal or informal) under which it pays for the claimant’s emergency medical treatment regardless of lack of liability, has that RRE “accepted responsibility” for medical payments whether or not medical expenses have been submitted to it?

The statutory $1,000 per claim, per day penalty for failure to report a claim has many RREs nervous, leading to discussions of “over-reporting.”  One insurance company executive asked pointblank: “Why shouldn’t I simply report to CMS every claim on my claim system? That way I can not be charged with failing to report.”

There are many reasons why reporting every claim is not the right answer to compliance with the MMSEA statute, but one good reason: by reporting a claim you are telling CMS: “I am a primary payer on this claim so I am obligated to reimburse Medicare for every payment made for this beneficiary’s treatment.”  When you get the bill from the Medicare Secondary Payer Recovery Contractor for the millions of dollars in past Medicare payments for those claimants you didn’t owe coverage to, don’t call me.

CMS officials have promised to provide clearer standards on identifying reportable claims before actual reporting begins but -with the threat of heavy penalties for underreporting- reporting more claims than necessary will still be an issue.