New Defense Reporting Requirements for Insurers

Question: Here is the latest I am hearing from defense counsel. They are saying that “at the early stages of the case (and by mail or phone request, so they don't have to do it by written discovery) they call or write and ask for the full name, birth date, social security #, etc. of the plaintiff" because of the new Medicare reporting requirements.

What is this about? Is it legit? Does Medicare run the business of personal injury law practice now?

West Virginia Attorney

Answer: Insurers now have to report all settlements with Medicare beneficiaries to CMS in the quarter following settlement. In order to determine which settling claimants are Medicare entitled, they have to submit 4 data points to a Query system, which will simply tell them Yes or No as to Medicare entitlement. The four data points are Name, DOB, SS# or Medicare #, and Gender.

It is in your and your clients best interest to provide these initial data points as early as possible so that the insurance company (or self insured entity), otherwise known as the Responsible Reporting Entity (RRE) can search the query system and determine your client’s Medicare status well ahead of settlement. This will help move things along at settlement time. We also advise firms to stipulate with defense at the time of settlement as to the 50 or so data points they will ultimately report to CMS (Medicare) post settlement IF your client is Medicare entitled. The collaborating as to the injury information is critical to ensure the RRE is not reporting different injuries to CMS than what you/your client have satisfied in payment of the tort recovery obligation.

Assuming the insurance company is not requesting anything more than those 4 data points noted above, they are not overstepping at this stage of litigation. Some firms provide them with “limited use” language that says you are providing them for the sole purpose of determining Medicare entitlement so as to allow the RRE to find out whether they will have to report in accordance with Section 111 reporting requirements.

Please let me know if you want more detail, and I can provide offline. Additionally, our website has an entire section regarding MMSEA (Section 11 Insurer Reporting Requirements) and exactly what it requires of RREs (and more importantly what it DOES NOT require).