Medicare ComplianceSam Crepeau, Medicare Compliance Counsel, ISG.

Although the specter of CMS imposing Civil Monetary Penalties (CMPs) for Section 111 non-compliance has haunted the MSP landscape since 2007, the intervening time has given all the players an opportunity to launch their respective compliance programs. Now that CMS has issued its Proposed Rule and we await the Final Rule (which many expect to be released sometime this year), it is critical to identify gaps in reporting and review conditional payment resolution practices.

Please refer here for the details of the Proposed Rule.

What are the penalties? The current Medicare statute provides penalties of up to $1,000 per day per non-compliance violation but has not enforced these penalties.

Although we will be discussing recovery and conditional payments in greater depth below, it is worth listing the proposed non-compliance circumstances:

  • An entity fails to register as an RRE.
  • A registered RRE fails to report.
  • An RRE’s efforts to resolve a recovery action initiated by CMS contradicts the RRE’s Section 111 reporting data.
  • The RRE exceeds reporting error tolerance thresholds.

Upping the Stakes on Resolving Conditional Payments

The Proposed Rule states penalties will be levied against RREs that submit information conflicting with Section 111 Reporting data when responding to recovery of conditional payments. Let us look at the potential impact further.

The Proposed Rule seem potentially draconian, as the penalties for providing inconsistent data with respect to a recovery response could easily exceed the amount CMS seeks to recover. For instance, a demand for $5,500 in reimbursement could rack up more than that amount simply in penalties over the course of a week!

What does it mean to contradict Section 111 reporting when responding to recovery efforts? This could mean that an RRE has failed to report updates to beneficiary records prior to engaging in the recovery process. For instance, a conditional payment notice is issued for a particular ICD code that an RRE intended to exclude from the compensability of the claim. Failure to update the claim ICD record and denying the code in the resolution process would contradict the reporting information CMS has, and potentially generate the CMP.

Mitigate Your Medicare Exposures

This underscores the importance of having a conditional payment resolution program which is consistent and coordinated with your Section 111 reporting. Claims professionals need to be aware that errors in Section 111 reporting not only lead to unnecessary conditional payments, but now resolving conditional payments have greater ramifications due to the possibility of conflicting claim information generating a CMP, which could quickly snowball into a problem much larger than the conditional payment amount.

RREs should view this as an opportunity to evaluate their current compliance practices. ISG offers compliance program auditing to provide visibility into the link between Section 111 data and conditional payments. We can be reached at