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OIRA releases updated information on Section 111 CMPs

The Office of Information and Regulatory Affairs (OIRA) has released an updated notice regarding the status of CMS’s Section 111 civil money penalties (CMPs) proposals. As many will recall, CMS released its Section 111 CMPs proposals in February 2020 and opened a public comment period that closed on April 20, 2020.

With the comment period closed, the big question is when CMS will release its “final rule” regarding Section 111 CMPs. The new OIRA notice, as outlined more fully below, does not provide a specific date regarding when CMS will release its final CMPs provisions. Instead, the notice simply advises that CMS expects to release its final rule within the standard three-year time period from publication of its proposals for release (that being by February 2023 in this instance). In this regard, CMS notes, however, that “we do not intend to delay publishing a Medicare final regulation for three years if we are able to publish it sooner.” Thus, when the dust settles, the notice does not really provide much information in terms of narrowing down when CMS may release its final rule.

Also, on another matter, it is noted that OIRA’s notice as part of its general description regarding when CMPs may be imposed includes, in part, a reference to when RREs “fail to register and report” as required under Section 111. It is interesting to note that CMS’s CMP proposals released back in February did not list this as a potential basis for potential CMPs.

The OIRA’s new notice can be broken in further detail as follows:

CMPs Description

CMS’s Section 111 CMPs are described as follows in the new OIRA posting:

This final rule specifies how and when CMS must calculate and impose civil money penalties (CMPs) when group health plan (GHP) and non group health plan (NGHP) responsible reporting entities (RREs) fail to meet their Medicare Secondary Payer (MSP) reporting obligations in any one or more of the following ways: when RREs fail to register and report as required by MSP reporting requirements; when RREs report as required, but report in a manner that exceeds error tolerances established by the Secretary of the Department of Health and Human Services (the Secretary); when RREs contradict the information the RREs have reported when CMS attempts to recover its payments from these RREs. This rule also establishes CMP amounts and circumstances under which CMPs would and would not be imposed.

As referenced above, it is noted in this description, one of the general bases cited for potential CMP imposition includes situations “when RREs fail to register and report as required by the MSP reporting requirements.” Inclusion of this basis is interesting as CMS’ CMP proposals released in February did not contain this item as a potential basis for CMP imposition. Thus, this may indicate that CMS will possibly add this as one of the includable bases for CMPs in the forthcoming final rule.

Final Rule Release Timeline

The updated OIRA notice does not provide a specific date for when CMS expects to release its final rule. Rather, the notice simply indicates that CMS expects to complete and release its final rule within the standard three-year period for release, that being sometime on or before February 2023 in this instance. 

The OIRA notice states as follows:

Overall Description of Deadline: Per the CMS notice published December 30, 2004 (69 FR 78442), except for certain Medicare payment regulations and certain other statutorily-mandated regulations, we schedule all Medicare final regulations for publication within the 3-year standardized time limit in the current Unified Agenda. We do not intend to delay publishing a Medicare final regulation for 3 years if we are able to publish it sooner.

Thus, unfortunately, the OIRA notice does not provide much on when the industry could realistically expect the publication of CMS’s final rule. In this regard, the above wording could be interpreted as indicating that CMS could release the final rule anytime between now and February 2023.

Information regarding Section 111 CMPs

For further information regarding CMS’s Section 111 CMPs proposals, see our article CMS’s Section 111 civil money penalties comment period closes. This article provides our break down of CMS’s proposals, as well as links to CMS’s actual CMP proposals as contained in the Federal Register and our commentary response.


Please do not hesitate to contact the author if you have any questions. In the interim, ISO Claims Partners will continue to monitor developments regarding Section 111 CMPs and provide further updates as may be warranted.

Mark Popolizio, J.D.

Mark Popolizio, J.D., is vice president of MSP compliance, Casualty Solutions at Verisk. You can contact Mark at

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