Section 111 Reporting Archives

CMS Section 111 Penalties Rule Focuses on Untimely Reporting

October 12, 2023

Stamp icons representing regulatory enforcement of Section 111 reporting by CMS.

On October 11, 2023, CMS published a final rule on the imposition of Civil Monetary Penalties for failure to comply with the Section 111 Mandatory Insurer Reporting requirements. The rule’s focus and the sole reason for penalties will be untimely reporting. Even if a Responsible Reporting Entity (RRE) reports untimely, it may only be subject to penalties if that claim is identified through a randomized quarterly audit process.

Please see a full Q&A below. We will be sending an invitation for a special webinar on Section 111 penalties shortly!

Note, while the final rule encompasses both Group Health Plans (GHPs) and Non-Group Health Plans (NGHPs), this article is specific to NGHPs.

Under what circumstances can CMS impose penalties?

Per CMS:

. . . we have determined that we will only impose penalties where the initial report was not received in a timely manner. Penalties will not be imposed on any other basis, such as in relation to the quality of reporting. Timeliness is determined by comparing the date a record is submitted and accepted against the date CMS should have received the record. The date CMS should receive a record is determined by the effective date of coverage or the date of settlement (or settlement funding date if the funding of the settlement is delayed) plus 1 year (365 days).

CMS considers the “initial report” to be the reporting on Ongoing Responsibility for Medicals (ORM) or, if ORM was not previously reported, the reporting of Total Payment Obligation to the Claimant (TPOC), namely the settlement, judgment, award, or other payment. Importantly, CMS expressly indicated in these comments that a failure to report ORM termination will not subject the RRE to penalties:

In the final rule, based on stakeholder concerns and submitted comments, CMS has chosen to focus its definition of noncompliance solely on those situations where an entity has failed to provide its initial report of primary payment responsibility in a timely manner. That means that untimely termination of ORM coverage records would not be considered eligible for a civil money penalty under this rule.

On the surface, even this more narrowly tailored rule could subject many claims to penalties. However, CMS is implementing a randomized audit process that will only review a small portion of the thousands of reported claims it receives. Per CMS:

CMS has determined that, given the time and resources necessary to accurately and thoroughly evaluate the accuracy of any submitted record, it would be possible to audit a total of 1,000 records per calendar year across all RRE submissions, divided evenly among each calendar quarter (250 individual beneficiary records per quarter).

- CMS will evaluate a proportionate number of GHP and NGHP records based on the pro-rata count of recently added records for both types of coverage over the calendar quarter under evaluation. For example, if over the calendar quarter being evaluated, CMS received 600,000 GHP records and 400,000 NGHP records for a total of 1,000,000 recently added beneficiary records, then 60 percent of the 250 records audited for that quarter would be GHP records, and 40 percent would be NGHP records.
- At the end of each calendar quarter, CMS will randomly select the indicated number of records and analyze each selected record to determine if it is in compliance with the reporting requirements as required by statute and defined herein.

Accordingly, to be chosen for a penalty a claim would need to both be reported untimely and identified through this randomized audit. As CMS indicated in its comments, it expects this type of audit to pick up larger reporting entities.

How will the RRE be notified of the penalty?

Once a claim has been identified for a penalty there is an informal notice process, per CMS:

We intend to communicate with the entity informally before issuing formal notice regarding a CMP. The informal (that is, prior to formal enforcement actions) written “pre-notice” process will allow the RRE the opportunity to present mitigating evidence for CMS review prior to the imposition of a CMP. The RRE will have 30 calendar days to respond with mitigating information before the issuance of a formal written notice in accordance with 42 CFR 402.7.

Common to all such instances where informal notice will be given is the intention to give the RRE an opportunity to clarify, mitigate, or explain any errors that were the result of a technical issue or due to an error or system issue caused by CMS or its contractors. It would be impractical and counter to the spirit of the informal notice process to regulate or enumerate all circumstances in which mitigating information could be provided or what that information should convey. As such, any mitigating factors or circumstances are welcomed, and a dialogue is encouraged in an attempt to find solutions that are short of imposing a CMP. We believe it is in the best interests of all RREs to leave the informal notice process open to any reasonable submission of mitigating factors so that we are free to entertain all such documentation without strict limits on what is, or is not, acceptable.

In many circumstances, the RRE may have a reasonable explanation for the untimely reporting. Because of the 30-day timeline, RREs must be prepared to react quickly to these informal notices by investigating and responding within the required timeframe.

If the RRE fails to respond to the informal notice or CMS does not accept the explanation for why the report was untimely, then CMS will issue a formal notice.

Is there an appeals process?

Yes, per CMS:

The recipient will have the right to request a hearing with an Administrative Law Judge (ALJ) within 60 calendar days of receipt. Any party may appeal the initial decision of the ALJ to the Departmental Appeals Board (DAB) within 30 calendar days. The DAB’s decision becomes binding 60 calendar days following service of the DAB’s decision, absent petition for judicial review.

If a penalty is imposed, how will the dollar amount be calculated? Is there a maximum penalty?

CMS has developed a tiered approach to penalties, which provides:

Because we have the statutory authority to adjust the amounts of penalties imposed on NGHP RREs, a tiered approach and cap on the total amount of penalties applicable to such RREs are being finalized in this rule. As explained previously, the statute does not permit us to extend this approach to GHP RREs. For any record selected via the random audit process described above where the NGHP RRE submitted the information more than 1 year after the date of settlement, judgment, award, or other payment (including the effective date of the assumption of ongoing payment responsibility for medical care); the daily penalty will be—

- $250, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 1 year or more, but less than 2 years after, the required reporting date;

- $500, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 2 years or more, but less than 3 years after, the required reporting date; or

- $1,000, as adjusted annually under 45 CFR part 102, for each calendar day of noncompliance, where the record was reported 3 years or more after the required reporting date.

Additionally, the total penalty for any one instance of noncompliance by an NGHP RRE for a given record identified by CMS will be no greater than $365,000 (as adjusted annually under 45 CFR part 102).

Are there any safe harbors from penalties?

Per CMS:

First, any untimely reporting that is the result of a technical or system issue outside of the control of the RRE, or that is the result of an error caused by CMS or one of its contractors would not be considered noncompliance for purposes of this rule.

Second, any untimely reporting by an NGHP that is the result of a failure to acquire all necessary reporting information due to a lack of cooperation by the beneficiary will not lead to a CMP provided that certain standards are met.

CMS defines a safe harbor based on good faith efforts to obtain claimant information for reporting as follows:

If an NGHP entity fails to report timely because the NGHP entity was unable to obtain information necessary for reporting from the reportable individual, including an individual’s last name, first name, date of birth, gender, MBI, or SSN (or the last 5 digits of the SSN), and the responsible applicable plan has made and maintained records of its good faith effort to obtain this information by taking all of the following steps:

- The NGHP has communicated the need for this information to the individual and his or her attorney or other representative (if applicable) and requested the information from the individual and his or her attorney or other representative at least twice by mail and at least once by phone or other means of contact such as electronic mail in the absence of a response to the mailings.

- The NGHP certifies that it has not received a response, or has received a response in writing that the individual will not provide his or her MBI or SSN (or last 5 digits of his or her SSN).

- The NGHP has documented its efforts to obtain the missing information, such as the MBI or SSN (or the last 5 digits of the SSN) and the reason for the failure to collect this information.

The NGHP entity should maintain records of these good faith efforts (such as dates and types of communications with the individual) in order to be produced as mitigating evidence should CMS contemplate the imposition of a CMP. Such records must be maintained for a period of 5 years. The current OMB control number assigned to this information collection effort, as required under the Paperwork Reduction Act, is 0938-1074.

Is there a statute of limitations on penalties?

Yes, per CMS:

We agree and will apply the 5-year statute of limitations as required by 28 U.S.C. 2462. Under 28 U.S.C. 2462, we may only impose a CMP within 5 years from the date when the noncompliance occurred.

The five-year limitation begins to run as of the date the untimely report is made to CMS.

When does the rule become effective?

The rule becomes effective as of December 11, 2023.

Will the rule be retroactive?

No, per CMS:

CMPs will only be imposed on instances of noncompliance based on those settlement dates, coverage effective dates, or other operative dates that occur after the effective date of this regulation and as such, there will be no instances of inadvertent or de facto retroactivity of CMPs.

Since the rule effective date is December 11, 2023, CMS can consider penalties on untimely reported claims on or after this date. This means that if the untimely ORM and TPOC date was December 11, 2023, or later, it may be subject to penalties. Untimely, pre-December 11, 2023, ORM and TPOC dates will not be subject to penalties.

Additionally, CMS has indicated that penalties will not be issued until one year after the final rule’s publication, namely October 11, 2024.

How does the final rule differ from the proposed rule?

The proposed rule contained two other issues that could result in penalties. These were RREs reporting ORM and later reporting contradictory diagnosis codes and exceeding error tolerance thresholds. The final rule consists solely of penalties for untimely reporting.

This means that reporting errors, such as incorrect diagnosis code reporting, will not result in Section 111 reporting penalties (although it can still result in inappropriate Medicare conditional payment demands). Further, when the RRE corrects this data, it will not be penalized for doing so.

What steps must an RRE take to avoid penalties?

Simply put, reporting of ORM and/or TPOC must be timely. When the criteria are met for a claim to be reported, it should be reported during the next quarterly reporting period.

Suppose the RRE has difficulty obtaining identifying information to determine whether a claimant is a Medicare beneficiary. In that case, those efforts should be in accordance with the good faith effort rules described in the safe harbor section.

Tower’s Section 111 reporting platform and management dashboard provides our reporting partners the tools necessary to identify Medicare-eligible claimants. Once eligibility is confirmed it is critical to use this information to report acceptance of ORM and/or TPOC. Tower MSA Partners stands ready to assist you with your questions and to provide necessary reports and overall guidance to ensure compliance.

Contact us if you are concerned that your current reporting platform may not protect you from penalties. An audit of your current Section 111 reporting data often reveals gaps in reporting which may lead to penalties.

Tower’s Chief Compliance Officer, Dan Anders, can be reached at daniel.anders@towermsa.com.

Section 111 Reporting Penalties Rule Released

October 10, 2023

Tower MSA Partners analyzes CMS final Section 111 penalties rule and compliance requirements for RREs.

The long-awaited Section 111 Mandatory Insurer Reporting Civil Monetary Penalties (CMPs) rule has been released. Recall that the purpose of the rule is to set out specific criteria for when CMS may impose penalties for what it considers a failure to report or improper reporting. The rule is unpublished but will be considered published tomorrow, October 11.

In conjunction with its release, the Centers for Medicare and Medicaid Services issued the following Alert:

Effective Dates

Please note that this rule is effective as of 60 days following the date of publication (December 11, 2023), but is only applicable one year after publication (October 10, 2024). RREs are expected to be compliant with their Section 111 Mandatory Insurer Reporting requirements no later than October 10, 2024, or they may be eligible for a CMP.

Additional Information

RREs should review the published rule and take time to evaluate their reporting processes to ensure the RRE is compliant with all reporting requirements before the rule goes into effect. If RREs have any questions or concerns about their reporting, they should contact their EDI representative.

We know that CMPs are of great interest to RREs, and CMS is in the process of developing and publishing additional written guidance related to CMPs. Questions should be directed to the new CMS Section 111 Civil Money Penalties mailbox at Sec111CMP@cms.hhs.gov. Please be aware that responses should not be anticipated at this time; CMS will use these questions and comments to help inform outreach and educational materials (including webinar presentations). RREs should continue to monitor the Mandatory Insurer Reporting pages on CMS.gov where additional guidance and updates, including information about CMP-related webinars, will be posted.

Key Takeaway

The initial key takeaway from this announcement is the rule will be enforced against RREs starting on October 10, 2024, one year from today. Further, as noted by CMS, there will be additional guidance before that date.

We are in the process of reviewing the regulation and will provide a complete analysis shortly. This will be followed by an invitation to a special Tower webinar to explain the rule and its implications for RREs and answer your questions.

If you have any immediate questions, please reach out to Tower’s Chief Compliance Officer, Dan Anders at daniel.anders@towermsa.com.

CMS Changes Rules for ORM and NOINJ Reporting in the Latest Update of its Section 111 Reporting User Guide

June 9, 2023

Tower MSA Partners explains CMS updates to ORM and NOINJ rules in the Section 111 reporting user guide.

The Centers for Medicare and Medicaid Services (CMS) recently released Version 7.2 of its MMSEA Section 111 User Guide. The guide contains some notable updates for Ongoing Responsibility for Medicals (ORM) reporting, determination of the ORM termination date with a physician letter, and use of the NOINJ code in certain liability settlements.

Revised Trigger for ORM Reporting

CMS revised Section 6.3 (Policy Guidance) on the trigger for reporting Ongoing Responsibility for Medicals (ORM):

The trigger for reporting ORM is the assumption of ORM by the RRE, which is when the RRE has made a determination to assume responsibility for ORM and when the beneficiary receives medical treatment related to the injury or illness. Medical payments do not actually have to be paid, nor does a claim need to be submitted, for ORM reporting to be required. The effective date for ORM is the DOI, regardless of when the beneficiary receives the first medical treatment or when ORM is reported.

We surmise that CMS added the additional requirement (bolded) for reporting ORM so that allow no-fault plans do not have to report ORM on minor claims that have no evidence of medical treatment. Workers’ compensation plans already have an exclusion for reporting ORM on minor medical-only WC claims where medical payments do not exceed $750, along with other requirements (See Section 6.3.1 of the guide).

The change raises an interesting question: What obligation does the no-fault plan have to determine if treatment has occurred? In other words, does the no-fault plan have to actively inquire about treatment? Or can it be passive and wait to report ORM after treatment is occurring? There isn’t an answer from CMS’s ORM definition.

Determining ORM Termination Date Based on Physician Statement

CMS previously added a provision to Section 6.3.2 (Policy Guidance) which allows ORM termination based on a physician statement finding that no additional medical items and/or services associated with the claimed injuries will be required. Apparently, a question arose about what ORM termination date to enter if such a physician letter is obtained. Per CMS:

Where an RRE is relying upon a physician’s statement to terminate ORM, the ORM termination

date to be submitted should be determined as follows:

Where the physician’s statement specifies a date as to when no further treatment was

required, that date should be the reported ORM termination date;

Where the physician’s statement does not specify a date when no further treatment was

required, the date of the statement should be the reported ORM termination date;

Where the physician’s statement does not specify a date when no further treatment was

required, nor is the statement dated, the last date of the related treatment should be used as the ORM termination date.

The above should clarify the appropriate ORM termination date to use when a physician statement is obtained.

Reporting of NOINJ is Now Optional

Since the early days of Section 111 reporting CMS has required liability claims where medicals are released in settlement but where the type of claim typically has no associated or alleged medical care to be reported. Because there were no diagnosis codes to report, these claims were reported with a “NOINJ” code. Examples of such claims were loss of consortium, an errors or omissions liability insurance claim, a directors and officers liability insurance claim, or a claim resulting from a wrongful action related to employment status action.

CMS has now revised its policy in Section 6.2.5.2 of the User Guide (Technical Information) on the reporting of such claims to state:

Note: In cases where the reporting of a liability record only meets the criteria for reporting a ‘NOINJ’ diagnosis code in Field 18, the reporting of the record is no longer required. However, it is optional for the RRE to report the record with the ‘NOINJ’ diagnosis code following the previously existing rules in the User Guide as follows:

This update is great news for carriers who have had to report these types of claims for more than a decade now.

If you have any questions on these updates, please contact Tower’s Chief Compliance Officer, Dan Anders, at (888) 331.4941 or daniel.anders@towermsa.com

CMS: Lead Insurer is RRE for Subscription Insurance Policy Section 111 Reporting

April 26, 2023

In an update to its Section 111 MSP Mandatory Reporting User Guide (Version 7.1 Chapter III Policy Guidance) CMS made clear that in a subscription insurance policy arrangement, the lead insurer is solely responsible for Section 111 mandatory reporting requirements.

The new section of the guide, Section 6.1.13 states:

In a subscription insurance policy arrangement, two or more insurers enter into an agreement whereby the risk of the insurance policy is spread among the various insurance entities in some agreed-upon ratio. In such arrangements, a lead insurer is designated for various administrative and business purposes. While there may be many co-insurers on a subscription insurance policy, there is only one lead insurer, and that lead insurer remains so throughout the policy life cycle.

Due to the nature of the subscription insurance market and the way such policies are structured, it is appropriate for the lead insurer to act as the sole RRE as it relates to Section 111 mandatory reporting requirements. The ability for the lead insurer to act as the sole RRE is predicated on the assumption that the lead insurer will avail themselves of all rights, requirements, and responsibilities codified in statute and further set out in regulation and within this and any other sub-regulatory guidance provided by CMS, as is from time to time amended. In any such lead reporting situation, as it relates to subscription insurance policies, CMS will assume that the lead insurer, as the sole RRE, will be responsible for all applicable reporting, recovery, and benefits coordination requirements that presently exist, regardless of the existence of any other co-insurer that may enter into a subscription arrangement or similar contract with the lead insurer.

Practical Implications

With subscription insurance policies, risk is divided among two or more policies. It can be an equal split, or one company assumes more risk than another as long as the combined coverage equals 100% of the required limits. In these arrangements, one insurer takes the lead as administrator.

Based on this policy announcement, only the lead insurer is required to complete Section 111 reporting as the sole RRE. Other insurers are released from reporting responsibilities.

Please get in touch with Dan Anders, Chief Compliance Officer, at daniel.anders@towermsa.com or 888.331.4941 with any questions.

CMS Extends Deadline for Publication of Final Section 111 Penalties Rule

February 20, 2023

There was much expectation that the Centers for Medicare and Medicaid Services (CMS) would meet the February 18, 2023 deadline to release a final rule on Section 111 reporting civil money penalties (CMPs). However, it was not to be. CMS extended its deadline for publishing the final rule by a year to February 18, 2024.

Recall that the purpose of the rule is to set out specific criteria for when CMS may impose penalties for what it considers a failure to report or improper reporting. A summary of the proposed rule can be found here.

In the notice, CMS explains the reason for the extension:

. . . We are not able to meet the initial targeted 3-year timeline for publication due to delays related to the need for additional, time-consuming data analysis resulting from public inquiry. It was not possible to conclude this data analysis on the initial, targeted timeline for the proposed rule because public listening sessions raised additional concerns that CMS believed were important to properly and thoroughly research prior to publishing the final rule. We have decided that it is critical to conduct additional analysis about the economic impact of the rule. We are preparing additional data analysis and predictive modeling to better understand the economic impact of the proposed rule across different insurer types. This data analysis is designed to review the actual current reporting and model potential penalties that would be imposed were the final rule in place. Along with delays resulting from the agency’s focus on the COVID- 19 public health emergency, we determined that additional time is needed to address the complex policy and operational issues that were raised. We are extending the publication deadline so as to provide the most accurate, complete, and robust data possible to confirm the intent and economic impact of the final rule.

Practical Implications

Besides not having to worry about penalties for another year, we are pleased CMS is taking the time to complete a data analysis of the impact of its penalty regulation. While in its initial regulatory announcement, CMS indicated its rule would not have a significant economic impact, we, as well as others, noted in our comments to the proposed regulation that the authority to impose penalties of up to $1,000 per day per claim could lead to millions of dollars of penalties on even one claim. This is most definitely a significant economic impact.

As required by law, CMS will eventually make its penalties rule final and issue penalties. Accordingly, while we await that final rule, you have been granted more time to ensure the accuracy and timeliness of your reporting.

Current Tower Section 111 reporting partners have access to our Section 111 Management Dashboard, which gives you complete visibility into your claims from a global level all the way down to specific claims. This, along with our standard error reports and consultation on error correction, is the best path forward to eliminate the potential for CMS to impose penalties.

If you do not yet partner with Tower for Section 111 reporting, now is an excellent time to consider the benefits of a platform which seamlessly manages Section 111 reporting, conditional payments, Medicare Set-Aside triage, clinical and legal interventions, MSA preparation, and CMS submission activities. Don’t hesitate to contact Tower’s Chief Compliance Officer, Dan Anders, at 888.331.4941 or daniel.anders@towermsa.com, with any questions.

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A Claims Professional’s Guide to Common MSP Acronyms and Abbreviations

January 19, 2023

Picture of scrabble tiles that could be put together to create MSP ACRONYMs

People in the MSP compliance business rattle off acronyms and abbreviations, such as AWP, MMSEA, and TPOC like it’s second nature. People immersed in Section 111 reporting and Medicare Set-Asides understand the abbreviations, but most people listening to us do not. So, here’s a quick cheat-sheet (or handy guide) to frequently used acronyms and their meanings:

Common MSP Acronyms and Abbreviations

AWP – Average wholesale price: The AWP is a Red Book pricing reference for prescription drugs. The lowest AWP is used to calculate Medicare Part D drugs in a Workers’ Compensation Medicare Set-Aside (WCMSA).

BCRC – Benefits Coordination & Recovery Center: This contractor to the Centers for Medicare and Medicaid Services consolidates the activities that support the collection, management, and reporting of other primary insurance coverage for Medicare beneficiaries. In short, it manages the MMSEA Section 111 reporting program and pursues conditional payment recovery when the claimant Medicare beneficiary is the debtor.

CMS – Centers for Medicare and Medicaid Services: The federal government agency oversees the Medicare program. CMS’s Division of MSP Program Operations directly manages CMS’s Medicare Secondary Payer (MSP) enforcement programs.

COB – Coordination of Benefits: The coordination of benefits (COB) program aims to identify the health benefits available to a Medicare beneficiary and to coordinate the payment process to prevent mistaken payment of Medicare benefits.

CRC – Commercial Repayment Center: This CMS contractor pursues conditional payment recovery when the self-insured entity or the insurer is the identified debtor.

CWF – Common Working File: CMS uses this tool to maintain national Medicare records for individual beneficiaries enrolled in the Medicare program. For example, a funded CMS-approved workers’ compensation Medicare Set-Aside (WCMSA) will trigger a marker in the CWF, so Medicare will not pay for care covered by the WCMSA.

LMSA – Liability Medicare Set-Aside: General term for an MSA in a liability case settlement.

MBI – Medicare Beneficiary Identifier: The Medicare Beneficiary Identifier (MBI) is the identification number replaced SSN-based health insurance claim numbers (HICNs) on all Medicare transactions, such as Medicare cards, billing, claim submissions and appeals.

MIR – Mandatory Insurer Reporting: Another term for MMSEA Section 111 reporting.

MMSEA – Medicare, Medicaid, SCHIP Extension Act of 2007: Section 111 of this act added mandatory reporting requirements regarding Medicare beneficiaries who have coverage under group health plan (GHP) arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards, or other payment from liability insurance (including self-insurance), no-fault insurance, or workers’ compensation, collectively referred to as Non-Group Health Plan (NGHP) or NGHP insurance.

MSA – Medicare Set-Aside: An account used to pay for injury-related and Medicare-covered medical services and prescription medications. It is a portion of a settlement that is reserved or “set-aside” for this purpose.

MSP – Medicare Secondary Payer: This is the term generally used when the Medicare program does not have primary payment responsibility, that is when another entity, such as workers’ compensation or liability insurance or a group health plan, is responsible for paying before Medicare.

MSPRP – Medicare Secondary Payer Recovery Portal: A web-based tool designed to assist in the resolution of liability insurance, no-fault insurance, and workers’ compensation Medicare recovery cases.

NGHP – Non-Group Health Plan: Typically used in reference to Section 111 reporting, NGHP includes liability insurance (including self-insurance), no-fault insurance, and workers’ compensation.

ORM – Ongoing Responsibility for Medicals: This refers to the Responsible Reporting Entity (RRE) paying for the injured party/Medicare beneficiary’s ongoing medical treatment associated with the claim.

RO – Regional Office: A CMS RO is assigned to each WCMSA case (based on the claimant’s state of residence); that RO makes the final determination of the appropriate funding level for the WCMSA.

RRE: Responsible Reporting Entity: The applicable plan, namely the NGHP, responsible for Section 111 reporting to CMS.

SSDI – Social Security Disability Insurance: Pays monthly benefits to workers who can no longer work due to a significant illness or impairment that is expected to last at least a year or result in death within a year.

SSN – Social Security Number: A numerical identifier assigned to U.S. citizens and other residents to track income and determine benefits.

TPOC – Total Payment Obligation to the Claimant: For Section 111 reporting purposes, CMS uses the term TPOC to refer to the dollar amount of the total payment obligation to, or on behalf of, the injured party in connection with the settlement, judgment, award, or other payment in addition to/apart from ORM.

WCMSA – Workers’ Compensation Medicare Set-Aside: This is a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services related to the workers’ compensation injury, illness, or disease.

WCMSAP – Workers’ Compensation Medicare Set-Aside Portal: The WCMSAP may be used to submit and view WCMSA proposals, to communicate about the review approval process, and to submit re-review requests. Users can also view the status and balance of an established WCMSA and submit annual attestations and detailed transaction records.

WCRC – Workers Compensation Review Contractor: This CMS contractor reviews all submitted WCMSAs and advises the CMS Regional Office whether the proposed WCMSA is sufficient, or a higher or lower amount is recommended.

CMS to Provide RREs with Response File on ORM Record Changes

January 11, 2023

book marked by sticky notes illustrating changes Section 111 reporting on ORM

Starting July 2023, Responsible Reporting Entities (RREs) can access updates/changes that another source has made to their claims for Ongoing Responsibility for Medicals (ORM). The Centers for Medicare and Medicaid Services (CMS) announced this in an update to its MMSEA Section 111 NGHP User Guide, Version 7.0.

It may surprise insurers and self-insurers that the ORM data they report through Section 111 reporting can be modified by the Benefits Coordination and Recovery Center (BCRC), which coordinates benefits on behalf of CMS. For example, suppose a claimant contacts the BCRC and advises that they are being denied medical care due to an open ORM (ORM indicates the RRE accepts the claim). In that case, the BCRC may update the ORM record to indicate that medical has been terminated (especially if the claimant indicates the case has been settled).

The RRE needs to be notified of this action to correct its reporting or to advise the BCRC that this was an erroneous change to the record.

Presently, and in our experience, the BCRC typically issues a letter to the RRE advising of the change it made to the ORM status. Starting this summer, RREs can also access these changes through Section 111 reporting. The revised user guide states:

Effective July 2023, RREs will be able to opt in via the Section 111 secure website to receive a monthly NGHP Unsolicited Response File. This will provide critical information about updates to ORM records originally submitted in the last 12 months and allow RREs to either update their internal data or contact the Benefits Coordination & Recovery Center (BCRC) for a correction.

This report will provide the source of the record modification and the reason for it. This should eliminate confusion when the BCRC changes ORM reporting data.

Other Updates to Section 111 User Guide

CMS included these other updates in Version 7.0 of the user guide:

Sections 6.4.2, 6.4.3 and 6.4.4. of Chapter III: Policy Guidance indicated CMS would maintain the $750 reporting threshold for physical trauma-based liability insurance settlements and the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibility for medicals.
In Chapter IV: Technical Information besides the aforementioned ability to, as of July 2023, obtain an NGHP Unsolicited Response File, CMS put in place the following changes:
Information on recovery agents was clarified to emphasize that such agents need written authorizations to pursue any post-demand actions (Section 6.3.1).
Recovery agents may now view the Open Debt Report on the Medicare Secondary Payer Recovery Portal (MSPRP), if the agent has an active MSPRP account with a TIN matching one submitted on the RRE’s TIN Reference File (Section 6.3.1.2).
ORM Termination Date field number 79 was corrected for the Event Table (Section 6.9.1).

As Tower is a recovery agent for many of our clients, the ability to download a copy of the Open Debt Report will be helpful in monitoring CMS’s ongoing recovery actions.

Finally, CMS updated Chapter V: Appendices as follows:
The CP13 soft edit policy limit amount has decreased from $1000 to $500 (Appendix F).
For the TIN Reference File, the Go Paperless Indicator is no longer required when submitting the Recovery Agent TIN (Field 25) (Appendix G).

If you have any questions on these updates, don’t hesitate to contact Tower’s Chief Compliance Officer, Dan Anders, at Daniel.anders@towermsa.com or 888.331.4941.

CMS Announces Upcoming Section 111 Webinar / WCMSA Reference Guide Update Released

November 15, 2022

Tower MSA Partners covers CMS new guide on Medicare conditional payment appeals and the upcoming Section 111 reporting webinar.

The Centers for Medicare and Medicaid Services (CMS) recently published a Section 111 reporting webinar notice and an update to its CMS WCMSA Reference Guide.

CMS Section 111 Reporting Webinar

CMS will hold a Section 111 NGHP Webinar on December 6, 2022, at 1:00 PM ET. The notice says:

CMS will be hosting a Section 111 NGHP webinar. The format will be opening remarks by CMS, a presentation that will include NGHP reporting best practices and reminders followed by a question and answer session. For questions regarding Section 111 reporting, prior to the webinar, please utilize the Section 111 Resource Mailbox PL110- 173SEC111-comments@cms.hhs.gov.

The webinar notice can be found here. We encourage anyone involved in the management of Section 111 reporting to tune into it. Please note that there is no pre-registration; instead, the link and call-in phone numbers are on the notice. You just log in shortly before the webinar’s start time.

WCMSA Reference Guide Update

The update to CMS’s WCMSA Reference Guide, Version 3.8 provides for changes to the re-review criteria. (Because CMS does not have a formal appeals process after an MSA determination, it allows what are called re-review submissions). Currently, CMS allows for re-reviews for mathematical errors and missing documentation. It has now added a section for submission errors which provides:

Submission Error: Where an error exists in the documentation provided for a submission that leads to a change in pricing of no less than $2500.00, a re-review request may be made by submitting updated documents free of errors that caused the original review outcome. Amended documents must come from the originators with appropriate notation to identify that the error was corrected, along with the date of correction and no less than hand-written “wet” signature of the correcting individual. Note: This submission option is only available for approvals from September 1, 2022 forward.

Examples include, but may not be limited to: medical records with incorrect patient identifying information or rated ages where the rated-age assessor provided incorrect information in the rated-age document.

Rather than applying to submitter errors, this addition to the re-review policy appears to account for errors in the documentation that was provided to the submitter, such as a rated age or medical records.

Tower conducts a thorough review of all relevant documentation when the MSA is prepared and submitted. Consequently, documentation errors are identified and corrected before MSA submission. As such, we expect to make minimal use of the Submission Error Re-Review.

CMS also added a new section entitled Re-Review Limitations:

16.2 Re-Review Limitations

Note: The following re-review limitations are only available for approvals from September 1, 2022 forward.

Re-review shall be limited to no more than one request by type.

Disagreement surrounding the inclusion or exclusion of specific treatments or medications does not meet the definition of a mathematical error.

Re-review requests based upon failure to properly review already submitted records must include only the specific documentation referenced as a basis for the request.

It appears that the long-time policy of unlimited re-reviews has come to an end. We understand CMS’s statement that a re-review “shall be limited to no more than one request by type” to mean one re-review is allowed for a mathematical error, one for missing documentation, and one for a submission error.

CMS’s intention for stating that a “disagreement surrounding the inclusion or exclusion of specific treatment or medications does not meet the definition of a mathematical error” is not clear. While perhaps not a math error, when medical records from a treating physician clearly say surgery is no longer recommended or medication has been discontinued but CMS includes such treatment or medication in the MSA, we submit it as an error.

Tower has submitted numerous re-review requests to remove or modify treatment or medication from the MSA based on treating physician statements in the medical records. Tower has a 68% success rate with re-reviews when CMS previously issued an MSA counter-higher, proof that these are reasonable requests. We hope the addition of Section 16.1 does not signal CMS’s intention to reject these reasonable re-review requests.

If you have any questions, please do not hesitate to contact Dan Anders, Tower’s Chief Compliance Officer, at Daniel.anders@towermsa.com or 888.331.4941.

CMS to Hold Webinar on “Go Paperless” Feature in MSPRP

March 28, 2022

On April 13, 2022, at 1:00 pm ET, the Centers for Medicare and Medicaid Services (CMS) will host a webinar on the “Go Paperless” option in the Medicare Secondary Payer Recovery Portal. The selection of this option will provide for more expeditious receipt of correspondence from the CMS Medicare conditional payment recovery contractors. Per the announcement:

The Centers for Medicare & Medicaid Services (CMS) will be hosting an overview of the new “Go Paperless” feature available in the Medicare Secondary Payer Recovery Portal (MSPRP). Insurers and authorized agents may now choose to opt-in to paperless functionality. Once registered, users will be able to quickly and easily access all recovery correspondence including demand letters, using the MSPRP. Opting to “Go Paperless” in combination with the ability to submit correspondence through the MSPRP and the multiple available options for electronic payment will allow your organization to not only reduce the amount of paper that needs to be physically handled, associated workload and environmental impacts, but also eliminate concerns about delays that can arise when information is sent through the mail.

The webinar will feature opening remarks and a presentation, followed by a question-and-answer session.

Note, there is no pre-registration, instead, just follow the provided link shortly before the webinar start time.

By way of background, in January CMS released an updated Section 111 User Guide, Version 6.7, which in Chapter V provides as follows:

When there is an active Medicare Secondary Payer Recovery Portal (MSPRP) account for the insurer/recovery agent TIN, Section 111 submitters may set Go Paperless options (i.e., choose to receive letters electronically or by mail) for the insurer and recovery agent address using the following new TIN Reference File fields (Appendix B):

TIN/Office Code Paperless Indicator (Field 23)
Recovery Agent Paperless Indicator (Field 24)
Recovery Agent TIN (Field 25

Note: There are also five new fields (Fields 48-52) returned for these entries on the TIN
Reference Response File (Appendix D).

Along with the updates to the Section 111 User Guide, CMS also updated the Medicare Secondary Payer Recovery Portal (MSPRP) User Manual, Version 5.3, to incorporate functionality around the Go Paperless option.

Key Takeaways

We are pleased to see CMS provide this Go Paperless option for Responsible Reporting Entities (RREs) and their authorized agents. It is environmentally friendly and will allow time-sensitive correspondence i.e., Conditional Payment Notice with a 30-day due date, to be received and acted upon sooner.

If you are interested in taking advantage of the Go Paperless option or have other questions we encourage you to attend the CMS webinar. Also, you can always contact Dan Anders, Chief Compliance Officer, at 888.331.4941 or daniel.anders@towermsa.com with any questions.

CMS Releases Updated Section 111 NGHP User Guide

December 28, 2021

The Centers for Medicare and Medicaid Services (CMS) has released Version 6.6 of its Section 111 NGHP User Guide. Below is a summary of the notable updates and practical implications.

Funding Delayed Beyond TPOC Start Date Field

Last month we discussed an 11/03/2021 Alert from CMS on the use of Field 82 Funding Delayed Beyond TPOC Start Date. Field 82, per the Section 111 User Guide, is to be used in specific circumstances where the amount the claimant Medicare beneficiary is to be paid is not known at the time the settlement occurs. Per CMS, this happens most often in mass tort settlements.

As we previously related, the CMS Alert is confusing when it refers to the date settlement funds are “dispersed.” CMS seems to assume that the date inserted into Field 82 is not only the date that the settlement amount is determined but is the same date the funds are dispersed. However, these dates may be weeks or months apart. Our recommendation was to place the date settlement funds are dispersed in Field 82.

In its update to the User Guide, CMS now acknowledges this as the correct use of Field 82. Specifically, CMS states (Chapter III: Policy Guidance):

6.5.1.2 Timeliness of Reporting

NGHP TPOC settlements, judgments, awards, or other payments are reportable once the following criteria are met:

The alleged injured/harmed individual to or on whose behalf payment will be made has been
identified.
The TPOC amount (the amount of the settlement, judgement, award, or other payment) for
that individual has been determined.
The RRE knows when the TPOC will be funded or disbursed to the individual or their
representative(s)

RREs should retain documentation establishing when these criteria were or will be met. RREs

should not report the TPOC until the RRE establishes when the TPOC will be funded or

disbursed. In some situations, funding or disbursement of the TPOC may not occur until well

after the TPOC Date. RREs may submit the date the TPOC will be funded or disbursed in the

corresponding Funding Delayed Beyond TPOC Start Date field when they report the TPOC Date

and TPOC Amount, but must do so if the TPOC Date and date of the funding of the TPOC are

30 days or more apart.

Timeliness of MMSEA Section 111 reporting for a particular Medicare beneficiary will be based

upon the latter of the TPOC Date and the Funding Delayed Beyond TPOC Start Date.

Example:

There is a settlement involving an allegedly defective drug where a large settlement is to be

disbursed among many claimants.

The settlement provides a process for subsequently determining who will be paid and how much.

Consequently, there will be payment to or on behalf of a particular individual, but the specific amount of the settlement, judgment, award, or other payment to or on behalf of that individual is not known as of the TPOC Date. RREs are to submit the date of the settlement in the TPOC Date field and the amount of the settlement in the TPOC Amount field.

In this example, the determination of the TPOC Amount, as well as the funding or disbursement of the TPOC, will be delayed after the TPOC Date. Once the TPOC Amount and the date when the TPOC will be funded or disbursed are determined, the RRE should submit the record with the appropriate date in the corresponding Funding Delayed Beyond TPOC Start Date field.

Practical Implications

What CMS is getting at here is they want to know when the claimant receives the settlement funds so they can correctly time their recovery efforts. For Responsible Reporting Entities (RREs) this means if payment will be delayed more than 30 days post the TPOC date, then they must hold off on Section 111 reporting until the date the settlement funds will be disbursed has been identified.

We note that while CMS expects the above rule to apply to mass tort settlements, there are certainly cases, both liability and workers’ compensation, where funding may be delayed more than 30 days beyond the TPOC date. Thus, we believe the effect of this update on the “Timeliness of Reporting” rule will likely be much wider.

In terms of making this simpler for those entering the TPOC information, if the disbursement of settlement funds commonly occurs more than 30 days post-TPOC date, it may be easiest to always enter a date in the corresponding Funding Delayed Beyond TPOC Start Date field along with the TPOC Date and TPOC Amount, whether less than or more than 30 days from the TPOC date.

Updates to No-Fault Policy Limit

Also last month we discussed another CMS Alert reminding RREs where, depending upon state law or the terms of a given policy, the no-fault policy limit may vary. The Alert reminded RREs to update to the new policy limit as quickly as possible, including the use of an “off-cycle” report (A report made in addition to the required quarterly reporting). In our analysis of this Alert, we expressed concern as to whether such “off-cycle” reporting is mandatory or recommended. In other words, if mandatory and not done, that it would be considered non-compliance and potentially subject the RRE to penalties.

The updated User Guide CMS states as follows (Chapter III: Policy Guidance, Section 6.5.1.3):

Note: In some states, depending on various factors associated with the incident being reported, no-fault policy limits may vary. The reported Policy Limit should reflect the amount the RRE has accepted responsibility for at the time the record is submitted or updated. Just as importantly, if the Section 111 record needs to be corrected to reflect a new Policy Limit, the RRE should update the record as soon as possible.

Practical Implications

While CMS states the RRE should update the record as soon as possible, there is no reference to “off-cycle” reporting. We assume that while “off-cycle” reporting is preferred, that proper compliance will be determined based upon the quarterly report which includes the updated no-fault policy limit.

$750 Threshold Maintained for Section 111 Reporting and Medicare Conditional Payment Recovery

In a December 15, 2021, Alert CMS announced the 2022 recovery threshold for liability, no-fault and workers’ compensation settlements will remain at $750. Accordingly, Total Payment Obligations to the Claimant, TPOCs, in the amount of $750 or less are not required to be reported to CMS through the Section 111 Mandatory Reporting process, nor will CMS attempt to recover conditional payments for TPOCs of this amount (The threshold does not apply to liability settlements for alleged ingestion, implantation or exposure cases).

Practical Implications

As CMS is keeping the $750 threshold for mandatory reporting and conditional payment recovery there are no changes to the reporting processes or determinations as to when conditional payments should be investigated or resolved.

If you have any questions regarding these updates, please contact Dan Anders at daniel.anders@towermsa.com or 888.331.4941.