By Debra Forsythe and Patti Scamardo

Insufficient collaboration between plaintiff and defense attorneys regarding Medicare, Medicaid, and SCHIP Extension Act (MMSEA) Section 111 reporting requirements creates administrative complications which can negatively impact beneficiaries’ finances and their health care treatment.

To avoid this, both parties need to communicate with each other early in the process to ensure the data they submit to the Center for Medicare and Medicaid Services (CMS) matches.

One oversight can turn into many problems

Reporting different information to CMS could create two cases for one incident, which is often the snowball that creates the avalanche. For example, if the defense reports the date of injury (DOI) as Jan. 1, 2019, but the plaintiff reports it as March 17, 2022, CMS views that as two separate incidents; or, if the plaintiff reports the claimant’s leg is broken and the defense reports it was their arm, that could open a duplicate case.

If that happens, the Medicare beneficiaries are impacted because CMS will seek recovery on a second case. Suddenly, CMS is demanding additional funds from them, leading to confusion and frustration.

Further, the open recovery case can cause increased frustration for claimants seeking medical care. Their benefits could be put on hold and providers might refuse care if they believe the Medicare beneficiary has a new primary payer. Hospitals could also refuse to schedule surgeries and needed medical supplies could be withheld.

Additionally, if a second record is opened and not properly closed before it’s sent to the U.S. Department of Treasury for collections, CMS will garnish up to 15 percent of their Social Security check. They could also intercept tax refunds and/or IRS accounts.

Matching data points mitigate confusion

One of the data points frequently mislabeled is the settlement date. It’s often listed by the plaintiff as the date on which both sides agree in mediation. According to CMS, it's the date of the written agreement. However, if court approval is required, it’s the date of court approval, whichever occurs later. If there is no written agreement, it’s the date the payment is made.

In addition to the settlement date, the settlement amount, DOI, diagnosis codes, and funding beyond the total payment obligation to claimant (TPOC) date should match.

Best practices for communication

While it’s not a guarantee there will be zero discrepancies, plaintiffs should use Form B provided by the defense. It serves as an essential tool to make sure their data points align before anything is submitted to CMS.

Whether through Form B or letters, both sides should begin sharing that information as soon as possible, giving them sufficient time to work out inconsistencies.

Moreover, plaintiff and defense attorneys should familiarize themselves with the following important guidelines which will help them optimize communications.

The DOI is the date of first exposure, regardless of dates of employment, multiple defendants, etc. Exposure, ingestion/injection, and implantation cases would all follow this policy logic.

• In a mulit-defendant situation where there is one settlement release, the defendants report the same gross settlement values. If there are separate releases for each defendant, the defendant reports the gross settlement values represented in their release.
• CMS has a $750 gross settlement value threshold for reporting and recovery. However, that is only for trauma cases. CMS does not have a threshold for implant, ingestion/injection, or exposure settlements.
• Both sides should agree upon the diagnosis codes prior to the plaintiff establishing the recovery case. If the defense reports different International Classification of Diseases (ICD) codes, CMS has the right to reopen the recovery case and be reimbursed for additional codes. In mass tort cases, the lien resolution administrator should be providing the responsible reporting entity (RRE) with a reporting file. In a single event, prior to defense reporting, the plaintiff should collaborate with them to ensure a new recovery case is not established.
• The funding date is the date funds have been wired or mailed. In mass torts, it is not the date the qualified settlement fund (QSF) was funded, but the date the claimant has been approved to be paid.
• In a situation where a case settles but they will not receive the settlement funds until a later date, the RRE must report the correct settlement date but should also populate the “funding delayed beyond TPOC” field. This prevents CMS from seeking recovery of funds that the beneficiary does not yet have. 

Correct information early to avoid more hassles

When an erroneous duplicate case has been established, it is imperative that defense and plaintiff collaborate to correct the error. Defense may need to submit a correction file, and the plaintiff firm will be required to work with their lien resolution team or directly with the Benefits Coordination Recovery Contractor (BCRC).

Plaintiff and defense attorneys who thoroughly understand CMS’ guidance and collaborate from the outset on data points will reduce confusion, saving everyone time and money. More importantly, it ensures the Medicare beneficiaries’ well-being and financial stability.

Debra Forsythe is a senior director of business execution at Epiq, providing expert consultative guidance to plaintiff and defense counsel for their clients' mass tort, class action and/or single-event settlements.

Patti Scamardo is the project director for Epiq's strategy and advisory services team in the mass tort division. She specializes in MMSEA’s Section 111 mandatory insurer reporting.

The contents of this article are intended to convey general information only and not to provide legal advice or opinions.