On June 5, 2023, the Centers for Medicare & Medicaid Services (CMS) revised the Medicare Secondary Payer Mandatory Reporting Non-Group Health Plan (NGHP) User Guide (User Guide). On June 6, 2023, CMS hosted a webinar addressing the revisions. Many revisions are significant. This blog summarizes the updates and webinar.
Overview: CMS previously required Section 111 reporting where the Medicare beneficiary did not allege a physical or mental injury or incur related medical care but signed a broad-based release of any such claims. In these cases, Responsible Reporting Entities (RREs) were required to submit a Section 111 report with a diagnosis code of NOINJ. Following the June 5, 2023 update, Section 111 reporting of these claims is now optional.
This is a notable policy change. However, RREs should be mindful that use of the NOINJ code was/is appropriate only in “extremely limited and specific circumstances,” and the prior rules remain in place. To elaborate, use of the NOINJ code is only proper where a settlement or judgment releases medicals or has the effect of releasing medicals, but the type of alleged incident has no associated medical care and the Medicare beneficiary has not alleged medical care or a physical or mental injury. An example used by CMS is a loss of consortium claim where medical treatment was neither alleged nor incurred. See User Guide Policy Guidance, Chapter III, Section 126.96.36.199 and User Guide Appendix A, Form A-3, Field 18.
Take-Away: In cases where the RRE was previously required to Section 111 report but allowed to use NOINJ as the diagnosis code, the report is now optional.
TRIGGER FOR REPORTING ONGOING RESPONSIBILITY FOR MEDICALS (ORM)
There is a significant policy change on the trigger for reporting ORM. Previously, RREs were required to report ORM when ORM was assumed by the RRE or the RRE was otherwise required to assume ORM, even if the beneficiary received no treatment. CMS now requires a report of ORM when the RRE has made a determination to assume ORM and the beneficiary receives medical treatment related to the injury or illness. Medical treatments neither have to be paid, nor does a claim have to be submitted for ORM to be required. The effective date of the ORM is the date of incident, regardless of when the beneficiary receives the first treatment or when ORM is reported. This policy change is intended to ensure that the RRE reports accurate diagnosis codes.
Take-Away: The trigger for ORM is when the RRE makes a determination to assume ORM and the beneficiary receives treatment. We anticipate CMS may provide additional guidance on this issue in the future.
ORM TERMINATION DATE BASED ON PHYSICIAN STATEMENT
The updated User Guide addresses the proper ORM termination date when termination is based upon a physician statement. As outlined in prior User Guides, where there is no practical likelihood of associated future medical treatment, an RRE may submit a termination date for ORM if it maintains a statement signed by the beneficiary’s treating physician that no additional medical items and/or services associated with the claimed injuries will be required. If the RRE is relying on a physician’s statement to terminate ORM, the ORM termination date should be determined as follows:
See User Guide Policy Guidance, Chapter III, Section 6.3.2.
In the webinar, CMS confirmed that beneficiaries seeking to terminate ORM must also submit a physician statement to CMS. CMS expects RREs to obtain a copy of this statement for their files.
CMS clarified that other provisions in the User Guide which address ORM termination remain in place.
Take-Away: Where ORM is terminated based on a physician statement, the ORM termination date is the date that no further treatment was/is required (per the physician statement), the statement date (if the physician failed to specify a date on which no further treatment was required), or the last date of the related treatment (if the physician failed to specify a date and the statement was not dated).
UNSOLICITED RESPONSE FILES
In certain situations, the Medicare beneficiary may update NGHP ORM records. The purpose of the Unsolicited Response File is to notify the RRE (and/or its Reporting Agent) that someone other than the RRE has changed the ORM record. CMS addressed this issue in the User Guide and the webinar.
Why does CMS allow this change? Beneficiaries need access to care. CMS only allows a change where access to care is impacted.
What may be changed? The only update that the CMS will make based on information from a beneficiary is the ORM Termination Date.
What does CMS require from the beneficiary when making a change? The beneficiary must be verified. The beneficiary will also be asked probing questions such as, “Are you still treating,” “Is your case ongoing,” and “has coverage been exhausted.”
When will RREs have access to Unsolicited Response Files and how does an RRE obtain access? RREs will have access in July 2023. RREs may opt in to receive the Unsolicited Response File when registering to Section 111 report. RREs who are already registered may opt in or out.
What if the beneficiary reports incorrect information on about the ORM termination to CMS? The RRE should submit an update in its next Section 111 reporting cycle with a correction. The RRE may also submit an off-cycle report to CMS through its CMS Electronic Data Interchange (EDI) representative. However, if the off-cycle report is submitted, the RRE should also update the information in its next Section 111 reporting cycle.
Are RREs required to opt in to receive the Unsolicited Response File? While RREs are not required to receive Unsolicited Response Files, the only way to determine if the ORM Termination Date was modified is to obtain the unsolicited response file. Accordingly, CMS recommends that all RREs obtain this data.
Take-Away: Unsolicited Response Files are designed to let the RRE know the ORM termination date has been modified by someone other than the RRE. While CMS does not require the RRE to obtain these files, CMS recommends review and correction where the modified data is not accurate.
CMS acknowledged in the webinar that RREs may encounter unique issues. Where an RRE has a question, the RRE should provide CMS with specific examples. This will ensure that CMS is aware of and properly addresses the issue.
Barrye Panepinto Miyagi is a Partner at Taylor Porter and the Practice Group Leader for Taylor Porter's Medicare Secondary Payer (MSP) Compliance Group. Barrye is certified by the Louisiana Association of Self Insured Employers (LASIE) as a MSP-Fellow. She advises clients on all aspects of MSP compliance. She has over 30 years of experience defending mass tort and personal injury claims. As a result of her experience, Barrye brings a unique perspective to MSP compliance issues.
Shannon A. Shelton is Special Counsel at Taylor Porter and practices in the MSP Compliance Group. Shannon’s primary practice focus is complex litigation involving compliance with the Medicare Secondary Payer Act and Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007. Shannon has represented and defended Fortune 10 global energy companies in class action and mass joinder cases involving toxic tort exposure and personal injury from Naturally Occurring Radioactive Material (NORM). Shannon is also certified by LASIE as a Certified Medicare Secondary Payer (CMSP) Professional and has worked in the MSP Compliance arena for nearly 10 years.
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