MSP Reporting Penalties…Are Reporting Penalties Finally Coming to Fruition?

CMS, Mandatory Insurer Reporting, MSP News on December 12, 2018
Posted by Jean S. Goldstein, JD, CMSP

The Medicare Medicaid SCHIP Extension Act of 2007 (MMSEA) imposed Mandatory Insurer Reporting obligations on all Responsible Reporting Entities (RREs).  These mandatory requirements impart obligations on RREs, and require these entities to provide the Centers for Medicare and Medicaid Services (CMS) with data on claims that involve Medicare beneficiaries.  Furthermore, pursuant to the Strengthening Medicare and Repaying Taxpayers Act of 2012, non-compliance with the reporting requirements “may be subject to a civil money penalty of up to $1,000 for each day of noncompliance with respect to each claimant.” (Emphasis added.)  To date, there has been no issued guidance with respect to the monetary penalty provisions of the reporting requirements.  Essentially, we do not have any specifics surrounding the penalties, nor do we know how these penalties will be assessed, or what appeals process will be instituted.  For quite some time, we have speculated that enforcement mechanisms for penalties for the reporting requirements would soon come into play.  This past week issued on the heels of a notice of proposed rulemaking with respect to satisfying Medicare Secondary Payer (MSP) obligations, a notice of a proposed rule involving MSP reporting has also been issued.  This noticed can be found here.  The notice indicates that the proposed rule would address obsolete regulations and propose criteria and practices for which monetary penalties would and would not be imposed under the SMART Act.

Before overwhelming alarm sets in, it is important to note that the notice is simply a notice, and there have been no definitive specifics regarding a regulation issued.  The proposed rulemaking will need to clarify what constitutes a penalty, such as missing data, or overall inaccurate reporting.  Most importantly, there is still much to be addressed and public comments will be solicited.  Moreover, it is important to remember that the goal of the penalty provision is to promote accurate reporting and not fine RREs into some sort of a state of oblivion.

The due date on the notice listed on the Office of Information and Regulatory Affairs site is September 2019, as with the MSP obligations notice.  However, unlike the MSP obligations notice, this notice is not documented as being major or economically significant.  While it is certainly possible that reporting penalties are finally coming to fruition, there is still much to be addressed, determined, and commented on by the MSP stakeholder community.  We will be certain to update our readers on any progress on either of the proposed rules.