regardless of the amount, though there has been some suggestion that CMS might later promulgate a regulation dealing with such situations. For the purposes of the required reporting, the RRE does not determine what portion of any settlement, judgment, award, or other payment is for medicals and what portion is not, instead reporting the payment in full. The RRE reports responsibility for ongoing medicals separately from its other payment obligations but should not separate medical and non-medical damages if medicals have been claimed or released or if the settlement, judgment, award, or other payment otherwise has the effect of releasing medicals. When medical expenses are claimed or released, the RRE must report the settlement, judgment, award or other payment regardless of any allocation made by the parties or a determination by the court. When the parties do make such an allocation, CMS is not bound by it, even if a court has approved the allocation. While CMS claims that it will “normally defer to an allocation made through a jury verdict or after a hearing on the merits,” that deference is relevant
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only to whether or not CMS has a recovery claim with respect to a particular settlement, judgment, award, or other payment, and has nothing to do with the RRE’s reporting obligation The reporting requirement is triggered when payment is made—RREs must “report once there has been a settlement, judgment, award or other payment.” Tying the reporting requirement to the date of payment has consequences for the handling of a claim. A claimant who was not eligible for Medicaid at the inception of the claim might become eligible while the claim is pending, so the RRE has an obligation to keep track of the claimant’s Medicare eligibility throughout the claims or litigation process to make sure that the claimant’s status has not changed. RREs also must remember that their reporting obligations are particular to them and may not be satisfied indirectly by others. CMS cautions that providing notice of a pending claim does not satisfy an RRE’s reporting obligations because the reporting requirements arise at the time payment is made. Similarly, providing notice of a settlement, judgment, award or other payment by any means other than the CMS-established Section 111 reporting process does not satisfy an RRE’s reporting obligations. Finally, notice by another individual or entity— i.e., another RRE that has made payments to the claimant—will not suffice, either, because each RRE must report its own settlements, judgments, awards, or other payments to CMS. Each individual RRE involved in joint settlements, judgments, awards, or other payments thus must report individually at the time payment is made through the CMS reporting system. RREs must provide on a beneficiary-bybeneficiary basis, by type of insurance, by policy number, or by RRE. An RRE thus might submit more than one record for a particular individual in a particular quarter’s submission window. For example, if an insurer covers both drivers involved in an automobile accident and both drivers’ policies are making a payment with respect to a particular Medicare beneficiary, there would be a record with respect to each policy. There could also be two records with respect to a single policy if the policy were reporting a medical pay (considered to be no-fault) assumption of ongoing responsibility for medical expenses and a liability payment in the same quarter.
Special rules apply where the date of incident on a claim is prior to December 5, 1980. According to CMS, RREs are not required to report settlements, judgments, awards or other payments where the date of incident as defined by CMS was prior to December 5, 1980, but determining the date of incident is fraught with several other concerns. In the particular context of claims involving “exposure” to a substance such as asbestos—a category that should contain most claims with a date of incident so far in the past—the exposure must occur before December 5, 1980, and no exposure after that date may be released for the reporting requirement not to apply. If the claimant claims or releases exposure on or after that date, the RRE must report because Medicare has a potential recovery claim. For example, if a claimant is first exposed to asbestos before December 5, 1980, but that exposure continues on or after that date, the RRE must report any payment. Moreover, application of this rule is specific to particular claims and defendants. Therefore, if one defendant out of several defendants is alleged to have caused exposure before December 5, 1980, while the other defendants are alleged to have caused exposure after that date, the first defendant need not report, while the others must report. When a claim results in a judgment against the RRE that it appeals, the reporting requirement is contingent upon how the RRE handles the judgment pending appeal. If the RRE pays the judgment pending the results of the appeal, it must report to CMS. On the other hand, if no payment is made pending appeal, the reporting requirement arises upon resolution of the appeal. Penalties for Non-Compliance with the Reporting Requirements Under the MSP as it existed prior to enactment of the MMSEA, the government had the right to collect amounts it paid for medical expenses if those amounts should have been paid by a primary plan. If the government prevailed in such a lawsuit, it could collect double damages against the defendant. The MMSEA provides additional enforcement mechanisms. In addition to possibly being subject to a suit for double damages, an entity that fails to comply with its requireRed Tape continued on page 48