CMS releases new Section 111 NGHP User Guide and updated Section 111

By Mark Popolizio, J.D., Jeremy Farquhar

December 22, 2021 / 17 min read

The Centers for Medicare and Medicaid Services (CMS) has released an updated Section 111 NGHP User Guide (Version 6.6, December 13, 2021) for non-group health plans (liability, no-fault and workers’ compensation). This updated guide replaces Version 6.5 (October 4, 2021). In addition, CMS released an updated Section 111 NGHP 270/271 Companion Guide (Version 5.8).[1]

As usual, CMS lists the new updates in the beginning of each User Guide chapter in a “Summary” page. Review of these pages indicates that updates were made to Chapter II (Registration Procedures), Chapter III (Policy Guidance); Chapter IV (Technical Guidance); and Chapter V (Appendices).

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In general, the User Guide Version 6.6 makes various updates to different Section 111 compliance areas, including:

Funding Delayed Beyond TPOC Start Date field
PAID Act Implementation
Reporting of No-Fault Policy Limits
Removal of code G17.20 from list of ICD-10 codes excluded for purposes of no-fault reporting
CMS’s $750 low dollar threshold

A general overview of these and other updates made by CMS is provided as follows:

Funding Delayed Beyond TPOC Start Date field

Perhaps the most significant updates made in User Guide Version 6.6. relate to what CMS refers to as “clarifications” regarding the Funding Delayed Beyond TPOC Start Date field.[2]

As many will recall, in early November of this year CMS issued an Alert providing Responsible Reporting Entities (RREs)[3] with a “reminder” that they should be submitting the date that funds are “released” to the claimant/beneficiary using the Funding Delayed Beyond TPOC Start Date field, in situations where settlement funds were not yet received by the claimant/beneficiary as of the TPOC Date.

In User Guide Version 6.6, CMS revisits the Funding Delayed Beyond TPOC Start Date field. In the Summary page to Chapter III CMS states as follows: “The criteria for reporting NGHP TPOC settlements, judgments, awards, or other payments has been clarified including what to do if funding or disbursement of the TPOC does not occur until after the TPOC Date (Section 6.5.1).”[4] CMS notes similar changes in the Chapter V Summary pages as follows: “The criteria for reporting NGHP TPOC settlements, judgments, awards, or other payments has been clarified including what to do if funding or disbursement of the TPOC does not occur until after the TPOC Date (Appendix A (Funding Delayed Beyond TPOC fields) and Appendix F (Table F-2).”[5]

While CMS references these updates as “clarifications,” from the authors’ review of the sections cited by CMS it would seem fair to classify these updates as actual changes to CMS’s reporting directives regarding the Funding Delayed Beyond TPOC Start Date field. Based on the authors’ reading of the actual verbiage contained in Chapter III, Section 6.5.1.2 and Chapter V, Appendices A and F, the updates made by CMS would appear to be substantive changes to this reporting area.

On this point, to start, the authors outline CMS’s updated verbiage as contained in Chapter III, Section 6.5.1.2 under the “Timeliness of Reporting” heading:

Chapter III, Section 6.5.1.2

CMS states as follows in this section, with the new language added by CMS in bold text:

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, judgment, 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. [6]

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.[7]

In relation to the above, CMS provides the following “example” in this section, with CMS’s new verbiage provided in bold text:

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.[8]

Chapter V, Appendix A

The authors also note verbiage changes in Chapter V, Appendix A as outlined below, with the new language reflected in bold text.

The previous Appendix A verbiage read as follows: “If funding is determined after the settlement date (in TPOC Date field), provide actual or estimated date of funding determination. Also see the NGHP User Guide Policy Guidance Chapter III (Section 6.5.1 “Timeliness” of reporting). Format: CCYYMMDD Fill with all zeroes if not applicable.”

However, this language has been replaced as part of the Version 6.6 updates, with Appendix A now reading as follows: If the TPOC was funded or disbursed after the settlement date (in TPOC Date field), provide date when the TPOC was funded or disbursed. Also see the NGHP User Guide Policy Guidance Chapter III (Section 6.5.1.2 - Timeliness of Reporting). Format: CCYYMMDD. Fill with all zeroes if not applicable.[9]

Chapter V, Appendix F

Changes are also noted to Chapter V, Appendix F as outlined below, with the new verbiage provided in bold text.

Appendix F previously read: Most recent TPOC Date submitted on an add record is more than 135 days older than the File Receipt Date. However, as part of the Version 6.6 updates, this language has been changed to read as follows: Most recent TPOC Date (or Funding Delayed Beyond TPOC Start Date, where applicable) submitted on an add record is more than 135 days older than the File Receipt Date.[10]

Assessing CMS’s new changes to the Funding Delayed Beyond TPOC Start Date field

When the dust settles, these changes will likely result in necessary process changes for those RREs who commonly report TPOC information to CMS since historically, per CMS’s previously published reporting directives, the Funding Delayed Beyond TPOC Start Date field would have been utilized in very limited circumstances, typically in scenarios involving settlements with multiple plaintiffs, where a “determination of funding” had not been made as of the TPOC date.

On this point, prior to the User Guide Version 6.6 updates, CMS noted in relation to the “timeliness of reporting” that a TPOC became reportable once (a) “the alleged injured/harmed individual to or on whose behalf payment will be made has been identified” and (b) “the TPOC amount for that individual has been identified.”[11] CMS’s prior directives further indicated that, in cases where these criteria were not met as of the TPOC Date, that the Funding Delayed Beyond TPOC Date should be utilized to report the date those criteria were met.[12]

However, in User Guide Version 6.6, CMS is now indicating that RREs should not report a TPOC event until they have determined the date that the TPOC will be “funded or disbursed” and, in the event that occurs subsequent to the TPOC Date, that the Funding Delayed Beyond TPOC Start Date should be utilized to report the date that the TPOC has been or is expected to be “funded or disbursed.”[13] Furthermore, CMS indicates, as noted above, that RREs must report the Funding Delayed Beyond TPOC Start Date in any scenario where funds are not disbursed until more than 30 days after the TPOC Date.[14] Per CMS’s historical guidance, most RREs have likely made no prior attempt to capture and report the date that TPOC funds are actually disbursed within their Section 111 reporting processes. Based on the updates made in User Guide Version 6.6 it would now appear that RREs are required to do so effective immediately.

PAID Act implementation

On December 11, 2021, the Provide Accurate Information Directly Act (PAID Act) went “live.” As part of the PAID Act,[15] CMS will now provide RREs with the following information through the Section 111 Query Response File: (a) contract number, contract name, plan number, coordination of benefits (COB) address, and entitlement dates for the last three years (up to 12 instances) of Part C (Medicare Advantage) and Part D coverage; and (b) the most recent Part A and Part B entitlement dates.[16] Since June of this year, CMS took several steps to implement the PAID Act, including making the necessary changes to the Section 111 Query Process, various version updates to its Section 111 NGHP User Guide, and establishing a voluntary testing period for RREs.

Overall, the changes made by CMS regarding the PAID Act are mostly non-substantive. In general, CMS has simply made updates to User Guide language to remove earlier references to future PAID Act implementation dates, references to testing timeframes, etc. Those references are now outdated as all PAID Act related changes were implemented in full as of 12/11/21. While the summary pages refer to the specific changes which have now been implemented, those specific changes had been outlined within the last several versions of the guide and remain the same, in substance, as previously outlined.

More specifically, per the User Guide’s summary pages, CMS notes the following updates regarding Chapter III: “To support the PAID Act, RREs will now receive Part C (Medicare Advantage Plan) and Part D (Medicare prescription drug coverage) enrollment information for the past 3 years (up to 12 instances), as well as the most recent Part A and Part B entitlement dates, on the Query Response File (Chapter 3).”[17] CMS notes similar updates to Chapter V which it notes as follows: “To support the PAID Act, the Query Response File has been updated to include: Contract Number, Contract Name, Plan Number, Coordination of Benefits (COB) Address, and Entitlement Dates for the last three years (up to 12 instances) of Part C and Part D coverage. The updates will also include the most recent Part A and Part B entitlement dates. The HIPAA Eligibility Wrapper Software (HEW) software has been modified to extract the additional fields from the response file (Appendix E) and Appendix K).”[18]

In addition, CMS notes similar updates were made to the 270/271 Companion Guide regarding the PAID Act. Under the “changes for release” section CMS notes that per the PAID Act “RREs will now receive Part C (Medicare Advantage Plan) and Part D (Medicare prescription drug coverage) enrollment information for the past 3 years (up to 12 instances), as well as the most recent Part A and Part B entitlement dates. To support this Act, the HIPAA Eligibility Wrapper (HEW) software has been updated and the X12 271 query formats has been modified to extract the additional fields (see 217 Eligibility Response Companion Document).”[19]

To learn more about the PAID Act, see our recent article The PAID Act is now live – 5 things you need to know.

No-Fault Policy Limits

As part of the Chapter IV updates, CMS notes the following in its Summary page regarding no-fault policy limit reporting:

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 that the RRE has accepted responsibility for at the time the record was 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 (Sections 6.6.4 and 6.7.1)).[20]

In addition, as part of the authors’ review of Chapter IV, Sections 6.6.4 and 6.7.1 as referenced above by CMS, the following updates are also noted:

Section 6.6.4 (Table 6-12, p. 6-48): Event Table update under “Changed Information (other than Key Field information)” event type. “No-Fault Insurance Limit (field 61)” was not previously included within the fields outlined as requiring updates under this event type. Field now added under both the Event and RRE Action column descriptions.
Section 6.7.1 (p. 6-56): Added the following additional example language: “Example: 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.”

CMS’s $750 low dollar threshold

In follow-up to its recent Alert, CMS’s new User Guide has been updated to note that CMS is maintaining its $750 low dollar threshold for 2022.

In this regard, CMS notes the related updates to Chapter III, as follows: “As of January 1, 2022, the threshold for physical trauma-based liability insurance settlements will remain at $750. CMS will maintain 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 responsibly for medicals (Sections 6.4.2, 6.4.3, and 6.4.4">).”[21] Similar updates are noted in Chapter IV described by CMS as follows: “As of January 1, 2022, the threshold for physical trauma-based liability insurance settlements will remain at $750. CMS will maintain 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 responsibly for medicals (Sections 6.4.2, 6.4.3, and 6.4.4).”[22]

CMS has removed ICD-10 Code G71.20 from the list for excluded ICD-10 diagnosis codes for no-fault

As part of the Chapter V updates, CMS advises that ICD-10 code G71.20, added in October, has been removed from the list for excluded ICD-10 diagnosis codes for No-Fault Plan Insurance Type D (Appendix J). In this regard, the “Appendix J: No-Fault Excluded ICD-10 Codes” table previously included the following entry: “G71.20 | Congenital myopathy, unspecified.” This has now been removed per CMS’s Version 6.6 updates.

Questions?

Please contact the authors if you have any questions regarding CMS’s updates or other issues related to Section 111 reporting.

[1] The authors note that the full name of this guide is “270/271 Health Care Eligibility Benefit Inquiry and Response Companion Guide for Mandatory Reporting Non-GHP Entities.” However, in practice this resource is commonly abbreviated. In this regard, the authors reference this guide as the “Section 111 NGHP 270/271 Companion Guide” or simply as the “Companion Guide.”

[2] “TPOC” stands for “total payment obligation to the claimant.” CMS states that the TPOC reporting trigger refers to the dollar amount of a settlement, judgment, award, or other payment, in addition to or apart from ORM. CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter 6, section 6.4. In general, CMS describes TPOC as a “one-time” or “lump sum” payment intended to resolve or partially resolve a claim. Id. A TPOC is the dollar amount paid to, or on behalf of, the claimant in relation to a settlement, judgment, award, or other payment. Id. CMS states that the computation of the TPOC amount “includes, but is not limited to, all Medicare covered and non-covered medical expenses related to the claim(s), indemnity (lost wages, property damages, etc.), attorney fees, set aside amount (if applicable), payout totals for all annuities rather than cost or present values, settlement advances, lien payments (including repayment of Medicare conditional payments), and amounts forgiven by the carrier/insurer.” Id.

[3] Responsible Reporting Entities (RREs) are the parties who are obligated to report under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173). While Section 111 applies to both group health plans (GHP) and non-group health plans (NGHP) (i.e. workers’ compensation, liability, self-insurance, and no-fault insurance), references to Section 111 in this article relate to Section 111 reporting in the NGHP context as codified at 42 § U.S.C. 1395y(b)(8). In general, RREs are insurers and self-insurers, but could involve other entities such as self-insurance pools or assigned claims funds depending on the facts. (See generally, CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.5, October 4, 2021), Chapter 6. Expanding on this concept further, 42 U.S.C. § 1395y(b)(8) provides that the “applicable plan” is the RRE and defines the term “applicable plan” to include liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans.) However, claimants and their lawyers are not RREs and do not have reporting responsibilities under Section 111. Id.

[4] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter 1.

[5] CMS’s Section 111 NGHP User Guide, Chapter IV (Version 6.6, December 13, 2021), Chapter 1.

[6] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter III, Section 6.5.1.2.

[7] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter III, Section 6.5.1.2.

[8] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter III, Section 6.5.1.2.

[9] CMS’s Section 111 NGHP User Guide, Chapter V (Version 6.6, December 13, 2021), Appendix A.

[10] CMS’s Section 111 NGHP User Guide, Chapter V (Version 6.6, December 13, 2021), Appendix F.

[11] See e.g., CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.5, October 4, 2021), Chapter III, Section 6.5.1.

[12] See e.g., CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.5, October 4, 2021), Chapter III, Section 6.5.1.

[13] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter III, Section 6.5.1.2.

[14] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter III, Section 6.5.1.2.

[15] In pertinent part, the text of the PAID Act reads as follows:

(ii) SPECIFIED INFORMATION — In responding to any query made on or after the date that is 1 year after the date of the enactment of this clause from an applicable plan related to a determination described in subparagraph (A)(i), the Secretary, notwithstanding any other provision of law, shall provide to such applicable plan—

(I) whether a claimant subject to the query is, or during the preceding 3-year period has been, entitled to benefits under the program under this title on any basis; and

(II) to the extent applicable, the plan name and address of any Medicare Advantage plan under part C and any prescription drug plan under part D in which the claimant is enrolled or has been enrolled during such period.”

H.R. 8900, Further Continuing Appropriations Act, 2021, and Other Extensions Act, Title III, Offsets, Sec. 1301, (ii),

[16] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter 1.

[17] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter 1.

[18] CMS’s Section 111 NGHP User Guide, Chapter IV (Version 6.6, December 13, 2021), Chapter 1.

[19] Section 111 NGHP 270/271 Companion Guide (Version 5.8, December 3, 2021), p.2.

[20]CMS’s Section 111 NGHP User Guide, Chapter IV (Version 6.6, December 13, 2021), Chapter 1.

[21] CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.6, December 13, 2021), Chapter 1.

[22] CMS’s Section 111 NGHP User Guide, Chapter IV (Version 6.6, December 13, 2021), Chapter 1.