CMS Updates Section 111 NGHP Guide: No Monetary Thresholds for Reporting TPOCs in Exposure Cases

By Barrye Panepinto Miyagi - Partner, MSP and MMSEA (Section 111) Compliance Practice Leader | barrye.miyagi@taylorporter.com
Cindy Amedee - Partner | cindy.amedee@taylorporter.com
Medicare Secondary Payer and MMSEA (Section 111) Compliance

We recently blogged about Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (“Section 111”). Our February 13, 2020 blog addressed a revision to the NGHP User Guide which affected the obligation to Section 111 report settlements and judgments (also referred to as TPOCs) in exposure, implantation and ingestion liability claims. Our May 1, 2020 blog provided a brief description of the different types of Section 111 reports, when those reports are required and recent developments on potential fines related to Section 111 reporting (1). 

On June 29, 2020, the Centers for Medicare & Medicaid Services (CMS) made additional revisions to the
NGHP User Guide. The revisions specifically address Section 111 reporting in exposure, ingestion and implantation claims. The June 29, 2020 NGHP User Guide makes it clear that Section 111 reporting of all TPOCs to Medicare eligible claimants in exposure, ingestion and implantation claims is required – regardless of the amount of the TPOC. In the sections of the NGHP User Guide that address the monetary threshold for Section 111 reporting, CMS states: “This threshold does not apply to non-trauma liability reporting for alleged ingestion, implantation, or exposure cases. Any settlement, regardless of amount, should be reported for these types of cases” (2). CMS’ instructions on Section 111 reporting are separated into three types of claims: liability, workers’ compensation and no-fault. CMS’ statement concerning the fact that there is no monetary threshold for Section 111 reporting in exposure, implantation and ingestion claims pertains to all three types of claims (3).   

The effective date for Section 111 reporting TPOCs that are less than the CMS monetary threshold in exposure, ingestion and implantation claims is unclear. In the Summary of Updates to the June 29, 2020 NGHP User Guide, CMS refers to the revision as a reminder. As indicated in our February 13, 2020 blog, prior NGHP User Guides did not place defendants on notice of a requirement to Section 111 report exposure, implantation and ingestion TPOCs less than the monetary threshold for reporting. With the June 29, 2020 update to the NGHP User Guide, there is no question that Section 111 reports of all settlements, judgments and payments to Medicare eligible claimants in exposure, ingestion and implantation cases are required, regardless of the amount.

As noted in our previous blogs, there are limited exceptions to Section 111 reporting. Those exceptions are not addressed in this article. 

For advice on best practices for compliance with the MSP or how the most recent revision to the NGHP User Guide may affect your business, please contact Taylor Porter Partners
Barrye Panepinto Miyagi or Cindy Amedee.

About
Barrye Panepinto Miyagi: Taylor Porter Partner Barrye Panepinto Miyagi is a Certified Medicare Secondary Payer Fellow (CMSP-F), administered by the Louisiana Association of Self Insured Employers (LASIE), and she is the practice group leader of Taylor Porter’s Medicare Secondary Payer and MMSEA (Section 111) Compliance group, which  handles settlement and litigation issues related to the Medicare Secondary Payer Act. Barrye counsels businesses on the Medicare rules and regulations, including identifying and resolving Medicare’s interest in settlements and judgments, as well as complying with Section 111 of the Medicare, Medicaid and SCHIP Extension Act.

Along with monitoring developments on the Medicare Secondary Payer Act, Taylor Porter attorneys continue to follow the legal developments and regulations pertaining to COVID-19. For the latest legal news and developments, please visit the
Taylor Porter Coronavirus – Legal News and Business Resources section of our Firm’s website.

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