Friday, February 12, 2010

Is A CMS Questionnaire Required?

I have been a solo practitioner 1969. I am a member of AAJ and represent plaintiffs in civil cases only. Recently, I received a “CMS questionnaire” from an insurer for the first time referencing the federal law and claiming that the law imposes mandatory reporting requirements on insurers with respect to claimants who receive compensation from liability insurance with respect to medical expenses or a release of medical liability for medical expenses. Basically, the questionnaire asks if the claimant has ever been enrolled in Medicare Part A or B and also whether the claimant has ever applied for Social Security Disability benefits. Is this truly a mandatory requirement now which must be honestly answered for all personal injury claimants before cases can be settled with a liability insurer? Thanks for your help in this matter.

Massachusetts Attorney

You are not the only one getting such "CMS questionnaires" from an insurer. The reason you are receiving such a document from the insurer is because under the MMSEA statute (42 USC 1395y(b)(8)), the insurance company may have to report certain information to Medicare once a claim is settled. That reporting obligation arises in those cases where the injured individual is a current Medicare beneficiary at the time of settlement. The insurance company, generally referred to as a Responsible Reporting Entity or RRE, faces a $1,000 per day per claimant penalty under the statute if they are found to be out of compliance, so this obligation definitely has gotten their attention.

Therefore, in an effort to maintain compliance with Medicare, the RRE needs to determine if the injured individual is a current Medicare beneficiary. CMS has set up a Query Access system allowing an RRE to determine an injured individual's Medicare entitlement status based on the electronic submit of limited data. That data is as follows: 1) the person's Medicare number (aka HICN) or Social Security number; 2) the first letter of the person's first name; 3) the first 6 characters of the person's last name; 4) gender; and 5) date of birth. Using this limited information; Medicare will advise the RRE whether that individual is a Medicare beneficiary. If so, the RRE knows it will have to report the settlement. If not, absent contrary information, the case will not have to be reported unless that entitlement status changes to a 'yes' before settlement. If a case is reportable under the MMSEA, the RRE must report at least 50 data points to Medicare, and it can be as many as 131 data points. The RRE will not be in compliance with Medicare unless it reports to Medicare in a timely manner.

With regards to the request for Social Security information, the RRE is trying to determine whether the injured individual may require a Medicare Set Aside (MSA) to be established as a part of the settlement. Due to an abundance of misinformation currently in the marketplace, some RRE's mistakenly believe that the new MMSEA reporting statute obligates them to establish MSAs as a part of the settlement. While currently enacted law requires the settling parties to consider Medicare's interests, the use and propriety of a MSA in a liability settlement is really limited, and should be based on the case-specific facts. For more information about MSAs, I refer you to our MSA White Paper on our website.

To your question about whether is it required that you complete this "CMS questionnaire", I would say that it is not a requirement. However, practically speaking, until the RRE is satisfied that it is Medicare complaint, it will be very reluctant to settle a case, let alone disburse settlement proceeds. We advise plaintiff firms to cooperate with defense on these issues and help them to satisfy their reporting obligations by 1) providing the limited information mentioned above to enable the RRE to determine the injured individual's Medicare entitlement status, and 2) collaborate with the RRE on the data points to be reported to Medicare. We go as far as to suggest stipulating to the data that would be reported to Medicare as a part of the settlement agreement. We have seen that the MMSEA questions have had a chilling effect on the settlement continuum for those parties not willing to cooperate on these Medicare compliance issues. To that end, providing defense with appropriate information which is not overbroad is highly suggested.

For more information about MMSEA compliance, please talk with Marlene Wilson, our Director of MMSEA compliance. She can be reached at (866) 694-4446.

My best,
John Cattie