As we start the new year, here’s a look at the top five Medicare Secondary Payer (MSP) compliance stories of 2023 and what to watch for in 2024.

 A Look Back

Centers for Medicare and Medicaid Section 111 Penalties Rule Released

The long-awaited Section 111 penalties rule was published in October. Surprisingly, the final rule was more narrowly focused than the proposed version. Now, only untimely reporting (defined as one year later than it should have been reported) of Ongoing Responsibility for Medicals (ORM) and Total Payment of Claim (TPOC) is at risk for potential penalties. Not only that, not all claims that run afoul of the rule will be penalized. CMS will incorporate a randomized selection process to identify records for audit. Finally, CMS’s rule only applies prospectively, that is, with reportable data on October 11, 2024, and later.

See CMS Section 111 Penalties Rule Focuses on Untimely Reporting and CMS Releases FAQs on Section 111 Penalties for more details.

CMS to Require Section 111 Reporting of WCMSA Amounts

In a November 16, 2023 webinar, CMS announced plans to require the report of a Workers’ Compensation Medicare Set-Aside (WCMSA) amount concurrently with the report of TPOC in Section 111 Mandatory Insurer Reporting.  While CMS can presently coordinate post-settlement Medicare benefits when they receive settlement documents with an MSA amount, except for CMS-approved MSAs, this is not required.

CMS wants to close this information gap with a requirement to disclose an MSA amount included in a workers’ compensation settlement whether CMS approved the MSA or not. In the webinar, CMS indicated it would like to have the new reporting fields in place by January 2025.  This represents a technical and training challenge for Responsible Reporting Entities (RREs), who will now have to capture and report this data along with the currently required information.

More information can be found in our article, CMS to Require Section 111 Reporting of WCMSA Amounts.

Amended Reviews Open to All MSAs

Tower had urged CMS for some time to drop the past 60-month time requirement for an Amended Review and open it up to any prior WCMSA determination. We were pleased when CMS ended the 60-month requirement in May. It now allows a one-time Amended Review when a case meets this criteria:

• CMS has issued a conditional approval/approved amount at least 12 months prior.
• The case has not yet been settled as of the date of the request for re-review.
• Projected care has changed so much that the submitter’s new proposed amount would result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

Further information can be found in CMS Significantly Expands Amended Review MSA Availability and MSA Amended Reviews – Key to Settlements of Old Dog Legacy Claims

Option for Unsolicited Response File on ORM Record Changes

Starting in July 2023, RREs had the option to receive a monthly NGHP Unsolicited Response File through the Section 111 secure website. The Unsolicited Response File provides the RRE with changes made to ORM records by the Benefits Coordination and Recovery Center (BCRC), which were not requested by the RRE, but rather are typically in response to communication with the claimant. The file allows the RRE to update or correct its reporting dataor report to the BCRC that the action taken is inconsistent with the RRE’s legal obligations in relation to ORM.

See Section 7.5 of the NGHP Section 111 User Guide, Chapter IV, Technical Information, for further information on the NGHP Unsolicited Response File.

Medicare Conditional Payment Appeals Guide

While it did not break any new ground on bases to appeal Medicare conditional payments, the April release of the NGHP Applicable Plan Appeals Reference Guide represents an important move toward CMS transparency around demand letter appeals. The guide clarifies both the policy and process for RREs or their representatives in submitting such appeals. Notably, Tower referenced the guide in successfully appealing a Medicare conditional payment demand before a CMS Administrative Law Judge.

A copy of the guide can be found here.

What to Watch for in 2024

Section 111 Penalties Implementation:  As the data to be considered for Section 111 penalties is October 11, 2024 and later, there is no possibility of a penalty being issued in 2024 (as the data must be reported one year late). When it released the rules, CMS stated that it would have further policy announcements and webinars. This includes a January 18, 1:00 pm ET, informational webinar. Details on the webinar can be found here.

Section 111 Reporting of WCMSA Amounts: CMS has tentatively set the start date for reporting WCMSAs as January 2025. The planned timeframe is for an updated file layout and error codes to be released in early 2024, with testing in the fall of 2024. CMS is expected to issue written guidance along with webinars on the topic.

New MSPRP Portal Features:  CMS has indicated it will continue introducing new Medicare Secondary Recovery Portal features. We will be on the lookout for these throughout 2024.

Medicare Beneficiary Appeals Guide:  In 2023, CMS released an appeals guide for NGHP plans to appeal Medicare demands from the Commercial Repayment Center. We expect CMS will also release a similar document for Medicare beneficiaries to appeal demands from the BCRC.

Finally, there will surely be other CMS announcements during the year. As always, we will provide you with summaries and key takeaways.

Best wishes from your friends at Tower for a healthy, happy, and prosperous new year! Remember to contact our Chief Compliance Officer Dan Anders with questions about any MSP compliance and MSA issues. Reach him at daniel.anders@towermsa.com.