Page 24: of Marine News Magazine (April 2013)

Attention maritime entities that employ Jones Act Seamen covered by liability insurance, including self-insur-ance, or land based employees covered by no-fault insurance or any workers? compensation act: you MUST protect Medicare interests. These plans are also known as Non-Group Health Plans (NGHP). Failure could mean a  ne of $1,000.00 per day per claim or liable to reimburse Medicare for payments made to a claimant. This reimbursement could be pursued from the insurance company, the insured, or even counsel, possibly including defense counsel. Medicaid Medicare SCHIP Extension Act of 2007 (MMSEA) §111 has added mandatory reporting require- ments with respect to Medicare bene ciaries who receive a settlement, judgment, award or other payment from an entity. This includes Jones Act and Longshore and Harbor Workers? Compensation Act (LHWCA) employers. Under this reporting scheme, these entities are designated as a Re- sponsible Reporting Entity (RRE). First of all, who can be considered an RRE is not so straight forward. It could be the employer or it could be liability in- surer (including self-insurer), no fault insurer, or workman?s comp insurer. In short, it can be a real ?spaghetti monster.? And, for any maritime attorney settling Jones Act and LHW- CA 905(b) claims, this is a very important ? and complicated ? issue. In the end, all the analysis points to the conclusion that the employer will ultimately be held responsible. According to MMSEA §111, RREs have a responsibility to: 1.) determine whether a plaintiff/claimant is entitled to Medicare bene ts on any basis; and 2.) upon settlement of a Medicare bene ciary?s claim, submit all information required by Centers for Medicare and Medicaid Services (CMS) with respect to the claimant to CMS. The actual RRE reporting is triggered by settlement, award, judgment or other payment to a Medicare bene ciary. A Medicare bene ciary is a person age 65 or older, a person under 65 with certain disabilities, and a person of all ages with end-stage renal disease. How- ever, the analysis concerning the determination of a Medi- care bene ciary is not as simple as it may seem. To satisfy these responsibilities, the RRE is required to input either a Medicare Health Insurance Claim Number (HICN) or the injured party?s Social Security Number (SSN), the  rst six characters of the Medicare bene ciary?s last name, his/her date of birth, and gender. Other relevant information may include the nature and extent of the injury or illness, facts about the incident giving rise to the injury or illness, infor- mation suf cient to assess the value of reimbursement, and information suf cient to assess the value of future care plan- ning. RREs are ultimately responsible for complying with the reporting process including ensuring the accuracy of all reported information. While RREs may not contract away their obligation under this law, they may elect to use an agent for reporting purposes. RREs must report settlements, judg- ments, awards, or other payments regardless of whether or not there is an admission or determination of liability. Table 1 provides when reporting requirements become mandatory after a Total Payment Ob- ligation to the Claimant (TPOC) threshold is meet for Liability Insurance, in- cluding self-insurance.Table 2 provides when reporting requirements become mandatory after a TPOC threshold is meet for Workers? Compensa- tion. These reporting re- quirements will result not only in added infrastructure cost (personnel and systems) for RREs, but also in additional steps in legal claim resolu- tion by mandating veri cation of CMS bene ts throughout litigation until resolution. To avoid lengthy delays, it is best to begin investigating a person?s Medicare bene ciary status as soon as a colorable Medicare bene ciary claim arises. If the claimant/plaintiff was not a Medicare bene ciary at a time when the RRE assumed ongoing responsibility for future medical care, the RRE must continue to monitor the claimant?s/plaintiff?s Medicare status, because it may change over time. If the claimant/plaintiff becomes a Medicare ben- e ciary, the RRE must report when that individual becomes a Medicare bene ciary unless responsibility for ongoing medicals has terminated before the individual becomes a Medicare Set Asides ? and You Jones Act and LHWCA employers must protect Medicare?s interest or pay the price. It may be boring, but it is important. Read and heed. By Gary English, President of Marine Forensic & Investigation Group, LLC. Table 1 Total TPOC TPOC Date Reporting Amount On or After Date > $5,000 10/1/12 1/1/13 > $2,000 10/1/13 1/1/14 > $300 10/1/14 1/1/15 Table 2 Total TPOC TPOC Date Reporting Amount On or After Date > $2,000 10/1/13 1/1/14 > $300 10/1/14 1/1/15 LEGALCOLUMN24 MNApril 2013MN April2013 Layout 18-31.indd 24MN April2013 Layout 18-31.indd 244/1/2013 11:30:32 AM4/1/2013 11:30:32 AM