Update: CMS Issues Policy Alert Regarding 12/5/80 Reimbursement and Reporting Obligations

Due to several inquiries about updates made in CMS’ December 5, 1980 exception policy, GRG writes this update to help clarify some of the questions that are being asked.

Previously, CMS has stated in Town Hall calls that all complaints (amended and original) must be considered when determining whether there is a reporting obligation. CMS’ Alert now permits the use of the most recent amended complaint or comparable supplemental pleading in determining qualification for exempt status.

While the amended complaint can be considered, the December 5, 1980 reporting exception policy remains the same with respect to the treatment of exposure, ingestion and implantation cases following the August 19, 2014 CMS Alert. The Client Alert issued by GRG took into account the interplay with the existing rules from the NGHP User Guide, Version 4.2, by identifying how CMS’ policy change impacts the multiple defendant scenario.

In regards to multiple defendant cases, if defendants issue a release together then all defendants must report if there is post December 5, 1980 exposure for any of the defendants. If there are multiple defendants listed on the complaint(s), but they settle individually (i.e. separate releases for each defendant), then only the defendant(s) with post December 5, 1980 exposure are required to report under Section 111 reporting. For example, if there are twenty defendants, each of whom enter into separate settlement agreements and releases with the same plaintiff, only those defendants who specifically had asserted against them, and had been released for, post December 5, 1980 exposure would have to report under the current CMS policy guidelines.

With that said, please note the original (and still operative) criteria that are to be used in determining the pre December 5, 1980 exposure exception. All three criteria must be met in order to be exempt from MMSEA Section 111 reporting (on a per defendant basis):

1. All exposure or ingestion ended or the implant was removed before December 5, 1980; [and]
2. Exposure, ingestion, or an implant on or after December 5, 1980, has not been claimed in the most recently amended operative complaint (or comparable supplemental pleading) and/or specifically released; and
3. There is either no release for the exposure, ingestion, or an implant on or after December 5, 1980, or where there is such a release, it is a broad general release (rather than a specific release), which effectively releases exposure or ingestion on or after December 5, 1980. The rule also applies if the broad general release involves an implant.

We appreciate everyone’s questions and feedback. The Garretson Resolution Group continues to provide industry insight to CMS, as well as monitor for developments at CMS, and will report future developments to the settlement community. For more information about this update and other MSP compliance services (including conditional payment reimbursement, MSA services and MMSEA Section 111 reporting), please visit www.garretsongroup.com.