CMS recently posted the following new guidance and alerts on significant changes to the mandatory reporting of Medicare beneficiary liability settlements, judgments and payments under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) in connection with the law's October 1, 2011, compliance deadline:

  • An alert delaying the MMSEA Medicare Secondary Payer (MSP) reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards or other payments as follows:
    • If the Total Payment Obligation to the Claimant (TPOC) occurs on or after October 1, 2011, and exceeds $100,000, reporting begins January 1, 2012.
    • If a payment of over $50,000 occurs after April 1, 2012, reporting begins on July 1, 2012.
    • If a payment of over $25,000 occurs after July 1, 2012, reporting begins on October 1, 2012.
    • If smaller payment amounts above the TPOC threshold are made after October 1, 2012, reporting begins on January 1, 2013.

This alert supersedes the content of Version 3.2 of the User Guide.

  • Policy guidance on exposure, ingestion and implantation issues explaining when Medicare will assert a recovery claim against settlements, judgments, awards or other payments and when the MMSEA reporting rules will apply to cases involving continued exposure to an environmental hazard, continued ingestion of a particular substance and toxic exposure from an implant. The critical date with respect to such exposures is December 5, 1980.
  • An alert on Qualified Settlement Funds (QSF) under Section 468B of the Internal Revenue Code indicating that MMSEA reporting is not required when all of the following criteria are met: (1) the settlement, judgment, award or other payment is a liability insurance (including self-insurance) TPOC amount, where there is no ongoing responsibility for medicals involved; (2) the settlement, judgment, award or other payment will be issued by a QSF in connection with a state or federal bankruptcy proceeding; and (3) the funds were paid into the trust prior to October 1, 2011.
  • A policy memorandum  providing information on proposed liability Medicare set-aside arrangement amounts related to liability insurance (including self-insurance) settlements, judgments, awards or other payments. According to the policy memorandum, when the beneficiary's treating physician certifies in writing that the treatment related to the liability insurance settlement has been completed as of the date of the settlement and that future medical items/services will not be required, Medicare will consider its interest, with respect to future medicals, satisfied for that particular "settlement." However, if the beneficiary receives additional settlements, he or she must obtain a separate physician certification for each settlement. This policy memorandum introduces the concept of establishing a Medicare liability set-aside amount from settlements. CMS, however, will not provide any confirmation that Medicare's interest for future medicals has been satisfied.

CMS also has indicated that further changes and alerts should be expected in the near future.