Rasa Fumagalli, JD, MSCC, CMSP-F
It is well established that parties to a settlement involving a current Medicare beneficiary should consider Medicare’s potential interest in the settlement. This interest comes from the Medicare Secondary Payer (“MSP”) Act and supporting regulations which provide a framework for Medicare to recover conditional payments from settlements involving Medicare beneficiaries and to avoid making improper payments. The Act prohibits Medicare from making payments for services “to the extent that payment has been made or can reasonably be expected to be made under any of the following: (i) workers’ compensation; (ii) liability insurance; (iii) no-fault insurance” (42 C.F.R. § 411.20; 42 U.S.C. § 1395y(b)(2)(A)).
Since Medicare is a secondary payer, parties should address pre-settlement injury-related conditional payments and take appropriate steps to avoid the appearance of a cost shift of future injury-related medical to Medicare in certain settlements. Coordinated Section 111 Mandatory Insurer Reporting is beneficial whenever possible since this reporting serves to drive Medicare’s coordination of benefits. This enforcement mechanism began in January of 2011 and notifies Medicare of settlements involving Medicare beneficiaries.
Section 111 reporting is the responsibility of a Responsible Reporting Entity (RRE) to Medicare for liability, no-fault, and workers’ compensation plans and insurers. The RRE must report to Medicare if the plan has an Ongoing Responsibility for Medical (ORM) or if the Total Payment Obligation to the Claimant (TPOC) is greater than the reporting threshold of $750.00. Additionally, the RRE must query the Medicare system regularly to identify when a claimant becomes eligible for benefits while the claim is still open.
Under the Section 111 reporting requirements, the RRE must provide the injury victim’s first name, last name, date of birth, gender, Medicare Beneficiary Identifier (MBI), and Social Security Number (or the last five digits). Additionally, the RRE must report International Classification of Diseases (“ICD”) -10 diagnosis codes for the illnesses/injuries alleged, claimed or released in the Total Payment Obligation to Claimant (TPOC) settlement, judgment, award, or other payment. CMS encourages RREs to supply as many valid ICD-9/ICD-10 Diagnosis Codes as possible for the most accurate coordination of benefits. The TPOC report must also include the date and amount of the settlement.
Section 111 data collection plays a pivotal role in the enforcement of the MSP Act. An RRE’s or insurer’s reporting violations will subject them to civil money penalties as of October 11, 2024. CMS is also expanding their collection of Section 111 data in the area of workers’ compensation by adding a specific WCMSA data field. As of April 4, 2025, an RRE will now have to include the specific amount of the WCMSA, even if none is included, when reporting the Total Payment Obligation to Claimant (TPOC) data. The reporting requirement will apply to both CMS-approved and to non-submitted WCMSAs. This additional data will make it easier for CMS’ to deny post-settlement injury-related care. Although this additional reporting field only applies to workers’ compensation settlements, it is possible that this may be rolled out to liability settlements at some future date. Discussion of ways to make it even easier for Medicare Advantage Plans to access this information is also taking place behind the scenes.
A recent settlement agreement between MSP Recovery, Inc. d/b/a LifeWallet, and 28 property and casualty (“P&C”) insurers highlights the significance of data sharing when it comes to the preservation of the Medicare Trust Fund. By way of background, LifeWallet has been on a lengthy mission to discover Medicare Advantage liens and enforce primary payer obligations on behalf of their assignments from various Medicare Advantage Organizations. ( See Synergy’s 4/20/2023 blog for additional information the cases https://synergysettlements.com/would-better-billing-by-providers-result-in-fewer-msp-recovery-claims-cases/) A key settlement term reflects the P&C Insurers’ agreement to share the last 10 years of processed claims data and to share data of future claims with LifeWallet in order to assist LifeWallet in their claims reconciliation abilities. A confidential cash payment from the P & C Insurers to LifeWallet is also being made to settle existing claims.
So how does all this data collection impact the injured party and their attorney? When it comes to conditional payment demands, a failure to address them in a timely manner may result in significant consequences. There may be Department of Treasury collection efforts, suits for double damages as well as an offset of the injured party’s benefits. An attorney may also face a legal malpractice claim or attorney disciplinary proceedings. Similar consequences exist for failing to address a Medicare Advantage Plan lien which can be easily missed due to lack of transparency. Similar to conditional payments, there can be collection efforts by entities like LifeWallet, which also can be for double damages, against personal injury law firms.
A recent attorney disciplinary proceeding entitled Disciplinary Counsel v. Adams, Slip Opinion No. 2024-Ohio-559, considered an Ohio attorney’s failure to address conditional payments in the attorney’s permanent disbarment. The disciplinary counsel filed a four-count complaint against Attorney Adams alleging the neglect of three client matters among other things. The first count involved Adams’ improper handling of a Medicare lien in the amount of $3,969.75, failure to distribute the settlement proceeds to the client, and a failure to refile a UM/UIM case within the statute of limitations.
As a result of Adams’ mishandling of the Medicare lien, the Department of Treasury notified the client that her monthly Social Security benefit would be reduced by up to 15% to satisfy the outstanding Medicare lien. Although the client notified Adams of this, he continued to avoid this issue and took no action to resolve. Meanwhile, the Medicare lien continued to increase due to interest being added on. Adam’s client also filed a legal malpractice complaint that resulted in a default judgment against Adams with compensatory and punitive damages, attorneys’ fees, plus court costs and prejudgment interest. In reviewing this count, the Ohio Board of Professional Conduct of the Supreme Court noted numerous ethical violations by Adams and ordered Adams to pay his client $12,971.74 in restitution. The Board further reviewed the three other counts and agreed with the initial hearing panel’s recommendation that Adams should be permanently disbarred from the practice of law in Ohio.
Although Adams’ actions were extreme, plaintiffs’ attorneys do face risks when it comes to Medicare Secondary Payer compliance issues. CMS’ collection of settlement data not only allows Medicare to recover for conditional payments made prior to settlements, but it also enables them to decline payment of post-settlement injury-related care in certain liability settlement. This risk is one that should be discussed and addressed whenever an attorney is representing a Medicare beneficiary in a personal injury matter that includes an element of future medical.
Conclusion:
Medicare Secondary Payer compliance issues should never be ignored. A proactive approach that screens the Medicare status of each client should be undertaken and updated throughout the duration of representation. It is also imperative that conditional payments and Medicare Advantage liens be addressed in a timely way. Injured parties should be advised about the potential impact of the Medicare Secondary Payer Act on their post-settlement injury-related care and files properly documented. We also recommend that counsel on both sides work together to make sure that the RREs report accurate and consistent Section 111 data to Medicare.
Synergy’s team of MSP compliance experts is here to help you navigate the maze of Medicare. Our MSP 360 services include an MSP compliance audit service, Medicare Expert Case Evaluation (MECE) consultation, Medicare Set-Aside services, and conditional payment negotiations. Reach out to our team today here.
