Robert J. Finley No Comments

Earlier this month, a lively lunchtime discussion turned to the subject of Section 111 reporting—past and future—as well as CMS’ pending Notice of Proposed Rulemaking. Various voices ventilating on the uncertainty and confusion over statutory $1,000 per day penalties…rulemaking delays…recent court decisions.

Upon leaving the table, though, one viewpoint radiated particularly bright:  Even if CMS does not penalize applicable plans, effectuating accurate Section 111 reporting practices also could provide a valuable tool for primary payers to favorably resolve and mitigate CMS conditional repayment claims.

A couple hypothetical cases in point to illustrate:

  • Medicare beneficiary alleges brain injury due to fall on premises and makes claim against NGHP no-fault plan. Plan disputes beneficiary’s no-fault claim based on pre-existing conditions and intervening, subsequent fall two (2) weeks later. Notwithstanding, Plan RRE records Section 111 data which includes initial fall date of injury, brain injury diagnoses codes and open ORM. CMS issues Notice to Plan for $14,000 conditional payment based on Section 111 data mining, yet CMS claims no payments in the two (2) week interval period and its first conditional payment is after the subsequent fall. Here, if Section 111 data reported ORM was not accepted, based on causal connection evidence, then one can reasonably conclude CMS is unlikely to make a claim and the Plan would not be exposed to the conditional payment notice. Recording accurate Section 111 data can enhance the effectiveness of the Plan’s conditional payment risk mitigation strategy.
  • Medicare beneficiary with severe upper extremity injuries covered under NGHP workers compensation policy. Yet, beneficiary also makes claims on NGHP no-fault plan (NFP) for same accidental injuries. NFP has coverage exclusion for workers compensation injuries. NFP RRE records Section 111 data which includes date of injury, diagnosis codes and open ORM. Despite NFP’s coverage exclusion appeals, which are denied at every administrative level, CMS’ conditional payment demand is eventually referred to United States Department of Treasury for debt collection. Treasury action causes urgent undertakings and deliberations by NFP’s corporate general counsels, C-suite executives, and shareholders. Here, if Section 111 data reported ORM was not accepted, based on coverage exclusion, then one can reasonably anticipate that CMS is unlikely to demand payment and the NFP would not be exposed to the Treasury action to collect conditional payments. If Section 111 data is available, then an ORM issue can be spotted and resolved within a reasonable period of time.

In other words, Section 111 may not be in its entirety the threatening stick of discipline, but also framed as a curative carrot on CMS conditional payment claims and vulnerability where the systematic Section 111-type standard operating procedures exists.

About Robert Finley

Robert J. Finley, a partner at Hinshaw & Culbertson LLP, has litigation and trial practice experience focused in tort, employment and healthcare.  He counsels firm clients under auto, property/casualty, no-fault, and workers compensation policies on Medicare repayment and Medicaid reimbursement compliance. Robert also advises Flagship Services Group on high value matters, in administrative hearings, and with educational solutions.

About Flagship Services Group

Flagship Services Group is the premier Medicare and Medicaid compliance services provider to the property & casualty insurance industry. Our focus and expertise have been the Medicare and Medicaid compliance needs of P&C self-insureds, insurance companies, and third-party administrators. We specialize in P&C mandatory reporting, conditional payment resolution, and set aside allocations. Whether auto, liability, no-fault, or work comp claims, we have assembled the expertise, experience and resources to deliver unparalleled MSP compliance and cost savings results to the P&C industry. To find out more about Flagship, our team, and our customized solutions, please visit us at To speak with us about any of our P&C MSP compliance products and services, you may also contact us at 888.444.4125 or

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