In response to the Advance Notice of Proposed Rulemaking (ANPRM) at http://www.gpo.gov/fdsys/pkg/FR-2013-12-11/html/2013-29473.htm, UWC submitted comments to the Centers for Medicare and Medicaid Services (CMS). Attached are the complete comments. The primary points of the comments are summarized below.
- Congress clearly indicated that civil money penalties were not to be imposed in all cases as a function of an untimely or unresponsive submission of a report by an RRE and established a duty on CMS not to impose such a penalty when there was no willful noncompliance.The purpose of issuance of civil penalties under the Medicare Secondary Payer (MSP) Mandatory Insurer Reporting Requirements of Section 111 of Medicare Medicaid, and SCHIP Extension Act of 2007 is to encourage timely and accurate reporting to CMS by RREs and NOT as a revenue generating tool. Civil monetary penalties (CMPs) should be imposed only in cases of willful non-compliance by RREs. In determining willful noncompliance a number of factors should be considered, including whether:
- the requested information is clearly identified;
- the information is necessary for proper administration of MSP;
- the method of submission is reasonable;
- the time frame in which the information is to be submitted is reasonable; and
- events beyond the control of the RRE and/or CMS may have rendered compliance impossible or so burdensome that failure to respond under normal time frames or with information as requested may be excused.
- CMS should adopt liberal waiver guidelines to encourage responsiveness and cooperation by RREs and their agents.
- The civil money penalty should be in an amount designed to encourage proper reporting and in proportion to the noncompliance.
- CMS should not impose CMPs on data points that are either impossible for an RRE to determine or in which CMS itself has instructed an RRE to make a best effort.
- CMS should not impose CMPs on “per day” basis on a claim where their reporting regimen bars reporting a claim between established reporting schedules.
- Compliance with reasonable policies and procedures implemented by an RRE should be accepted as good faith effort to report.
- CMS should not impose penalties for the failure to submit reports with respect to medical treatment that is not covered by Medicare.
- As the reporting requirements are duplicative in light of the DOL’s full regulation of claims under the LHWCA and include detailed reporting requirements concerning the information sought by CMS, compliance with DOL reporting requirements should be conclusive evidence of good faith by an RRE.
- CMS should establish a conflict resolution system permitting reporting parties an opportunity to present their position to CMS prior to implementation of any fines or penalties by CMS as well as a system for reporting entities to recoup overpayments made in error.
CMS should take direction from congress in the enactment of the SMART Act to adopt reasonable guidelines to be used in the application of civil money penalties as part of the methods by which to encourage reporting by RREs.
Guidelines should take into consideration
- the intent of the RRE in failing to report
- the nature of the error, whether administrative, clerical or substantive
- whether the failure of error may be cured with a corrected report
- the impact of the failure on the ability of CMS to appropriately administer MSP
- the difficulty inherent in the reporting requirement
- whether failure or erroneous reporting was due to factors beyond the control of the RRE
- the clarity or reporting instructions, and
- whether there was a good faith effort on the part of the RRE to comply.
Sanctions should be imposed only when there is conclusive evidence that an RRE intentionally failed to report as required, there was no intervening factor that caused the actual failure, and there are no facts upon which to conclude that the RRE was acting in good faith but was not able to report as required.
Sanctions should not be imposed when an RRE acted in good faith to report, failed to report due to circumstances beyond the control of the RRE, failed to report because reporting requirements were not clearly stated, or when reporting is so burdensome as to impose an undue hardship on the RRE.