Section 111 Civil Money Penalties: Issue Rises from the Dead, Placed in CMS-Induced Coma


Marty Cassavoy, VP of Mediare Secondary Payer Services

December is often quite a busy month in the Medicare Secondary Payer space, and this year is no different.  On the heels of last week’s announcement regarding possible regulations regarding the treatment of post-settlement medical, CMS unveiled its intention to file a notice of proposed rulemaking regarding civil money penalties in section 111 reporting, –albeit not until the third quarter of 2019. As with last week’s announcement, the document is light on details.  Here’s the text of the announcement:

“Section 516 of the Medicare Access and CHIP Reauthorization Act of 2015 amended the Social Security Act (the Act) by repealing certain duplicative Medicare Secondary Payer reporting requirements.  This rule would propose to remove obsolete Civil Money Penalty (CMP) regulations associated with this repeal.  The rule would also propose to replace those obsolete regulations by soliciting public comment on proposed criteria and practices for which CMPs would and would not be imposed under the Act, as amended by Section 203 of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (SMART Act).”

What does this really mean?

The first two sentences refer to mothballed rules regarding the old Data Match program for employers on the group health side of the business.  The third sentence is important for those involved with workers’ compensation, liability, and no-fault plans.  CMS announced that it will once again “solicit public comment” regarding “criteria and practices for which CMPs would and would not be imposed under the Act.”  The notice further indicates that a notice of proposed rulemaking is on track for a September 2019 release date.

We have been down this path before.  Almost five years ago to the day, CMS released an Advance Notice of Proposed Rulemaking on civil money penalties and section 111 reporting.  At that time CMS announced that it was “soliciting public comments and proposals for the specification of practices for which CMPS would or would not be imposed in accordance with” section 111 of the MMSEA.  CMS’ ANPRM went on to say that it was interested in comments: defining “non-compliance” with section 111; outlining how the agency would evaluate whether to impose CMPs; and developing standards for ascertaining what constitutes “good faith efforts” to identify Medicare beneficiaries, as the SMART Act exempts “good faith efforts” from CMPs.

CMS received thirty four comments to that ANPRM and they can be found here.

A theme in many of those comments is that Medicare should not penalize “good faith efforts” to report claim data properly, in a timely fashion, and accurately to CMS.  This was also the theme of an article our Scott Huber wrote earlier in the year. 

The bottom line is that this is another issue where there has been a considerable amount of fire, but very little smoke from the agency or anywhere else.  The goal in section 111 reporting has been simply to get it right the first time.  While the danger of CMPs is not clear and present yet, they lurk in the background and should not be discounted when considering the means and method of reporting data to CMS. ExamWorks Clinical Solutions monitors the CMS’ treatment of post-settlement medicals in all lines of insurance.

About Marty Cassavoy

Marty Cassavoy is the Vice President of MSP Compliance at ExamWorks Clinical Solutions.  Marty and his team develop solutions to challenges in all areas of Medicare Secondary Payer compliance and across all insurance types.  An attorney licensed to practice law in Massachusetts, Marty works out of ExamWorks’ Woburn, Massachusetts office and can be reached at 781-517-8085 or