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Medicare Insights


We deliver insights to help navigate the ever‑changing Medicare Secondary Payer landscape

CMS proposed rule withdrawn and final rule on Civil Money Penalties pending

October 31, 2022 · Medicare Insights Team

Since March 1, 2022, the Office of Information and Regulatory Affairs (OIRA) has been reviewing the following CMS-submitted Rules:

  • A “Final Rule” for Medicare Secondary Payer (MSP) and certain Civil Money Penalties
  • “Proposed Rule” regarding MSP and Future Medicals (Discussed in previous blog)

Optum has been closely monitoring the progress of both Rules as their impact would significantly alter the landscape of Medicare Secondary Payer compliance.

Update: The Proposed Rule titled “MSP and Future Medicals” has been withdrawn

For unknown reasons, CMS has withdrawn the Proposed Rule.

While it was unclear what The Proposed Rule contained, it was anticipated to include rules that provide guidance on liability Medicare Set Asides (MSAs) and no-fault MSAs. Given the complexities and challenges of liability/no-fault claims, many insurers were anxiously awaiting CMS’ guidance on these matters.

This is not the first time CMS has withdrawn a proposed rule. Nor does it mean CMS has given up on providing guidance on liability and no-faults regarding MSAs. At any point, CMS could submit a new proposed rule for consideration. Optum will be ready to inform you should that happen.

Final Rule regarding Civil Money Penalties remains pending

The still-pending, Final Rule is expected to include Civil Money Penalties (CMP) of up to $1,000 per day per claim for various Section 111 reporting failures, as previously covered by Optum.

Although the Rule has been in pending status for seven months now, once approved by the OIRA, the rule could be in place within 60 days.

Under MMA sec. 902, Medicare is required to publish final rules within three years of a proposed rule. In this case, the deadline for the Final Rule is February 18, 2023, approximately four months from now. Should the Final Rule be published and go into effect, Responsible Reporting Entities (RREs), insurers and TPAs will be required to react quickly to ensure compliance given the steep penalties the Final Rule will likely contain. Optum continues to closely monitor the Final Rule to provide interpretation and guidance once it is published.

Optum has solutions for your compliance needs to assist in avoiding Civil Money Penalties

Based on the potential costly penalties and risks from these Rules:

  • The Proposed Rule on CMPs, one error on one claim could result in a CMP of $1,000 per day, up to $365,000 per year. Ten claims out of compliance for a year could result in CMP exposure of $3,650,000.
  • The potential risk of non-compliance with CMS’ Final Rule could be staggeringly high

Optum has developed the cost-effective Medicare Claim Management product, which provides a holistic assessment to address MSP compliance needs at the individual claim level. The assessment will:

  • Help you comply with Section 111 reporting requirements
    (e.g., ICD codes, ORM and TPOC)
  • Provide recommendations to address conditional payments with Medicare, as well as Part C and D plans
  • Identify and recommend additional opportunities for cost savings for future medical
  • Provide documentation for the claim prior to settlement that includes the recommendation for an MSA and a review of proposed settlement language

Contact Optum for more information on Medicare Claim Management or to discuss how we can help you with your Medicare Secondary Payer compliance needs and put you in the best situation to minimize risk.

For additional information, please contact Optum MSP Compliance Counsel, Michael Flower at (p)813-627-2406


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