The Centers for Medicare & Medicaid Services (“CMS”) has issued final rules on the penalties imposed when Responsible Reporting Entities (“RREs”) fail to meet their Medicare as Secondary Payer (“MSP”) reporting obligations.
Background. In general terms, the MSP rules say that Medicare pays secondary to an employer’s group health plan for: 1) working-aged individuals and their spouses who are age 65 or over; 2) disabled individuals covered through a spouse who is actively employed; and 3) individuals with end-stage renal disease during the “coordination period.”
To comply with MSP’s reporting requirements, group health plans must report certain information to CMS about individuals enrolled in Medicare who also have additional coverage provided by that plan.
According to CMS “[T]his reporting requirement assists CMS in identifying situations where another party should make payment primary to Medicare. When Medicare is able to identify these situations prior to payment, mistakes in the payment process can be avoided. In situations after healthcare claim payments have been made, Medicare has the right to recover those payments from the primary payer.”
Responsible Reporting Entity. It is important to note that under the MSP reporting requirements, only an RRE is obligated to make the MSP reports to CMS on behalf of the plan. For group health plans, an RRE is: the insurer; a plan’s third party administrator if it pays or adjudicates claims for the plan; or, the plan administrator in the case of a plan that is self-insured and self-administered.
Therefore, an employer would not be an RRE, or have direct reporting obligations for its own group health plan under the MSP’s reporting requirements, except when it self-insures and self-administers. And, even if an employer does self-insure and self-administer, it may hire an agent to fulfill its RRE obligations. However, employers are expected to provide certain information to the RRE, so that the RRE may submit accurate MSP reports to CMS about the employer’s group health plan.
Penalties for Noncompliance. Penalties are imposed if an RRE fails to perform the required reporting within one year of the coverage effective date. In the final regulations, CMS said it will only issue penalties on a prospective basis, and there will be no instances of retroactive enforcement related to noncompliant reporting.
If an RRE believes that there were circumstances beyond its control that prevented it from reporting on time, it may appeal the penalty assessment.
The noncompliance penalty for an RRE is up to $1,000 (as indexed) for each day of noncompliance for each individual for whom information should have been submitted. A maximum penalty of $365,000 per individual per year applies.
The regulations are applicable as of October 11, 2024, and will be enforced as of October 11, 2025.
The regulations are available at: https://www.federalregister.gov/documents/2023/10/11/2023-22282/medicare-program-medicare-secondary-payer-and-certain-civil-money-penalties