CMS’s Section 111 NGHP Unsolicited Response File “opt-in” Process

By Mark Popolizio, J.D., Jeremy Farquhar

May 16, 2023 / 15 min read

Earlier this year the Centers for Medicare and Medicaid Services (CMS) formally announced a new Section 111 non-group health plan (NGHP) Unsolicited Response File “opt-in” feature. Per CMS, this new process starts “July 2023” (the agency did not state an exact date, though it would appear reasonable to assume the start date is July 1^st). As July quickly approaches, it is important that NGHP Responsible Reporting Entities (“RREs”) understand this new feature to determine whether they would like to “opt-in” to this process.

CMSs NGHP Unsolicited Response

Toward this goal, the authors, in follow-up to their prior articles, now break down this development in a “Question/Answer” format (fully recognizing, however, there are still more questions than answers in some areas) as follows:

1. What is the Section 111 NGHP Unsolicited Response File “opt-in” feature?

CMS describes this upcoming process as follows:

As of July 2023, the following change will be made: To inform RREs when another source has updated their submitted records, RREs may now opt in via the Section 111 Coordination of Benefits Secure Website (COBSW) application to receive a monthly NGHP Unsolicited Response File. This will provide key information about updates to ORM records originally submitted in the last 12 months and allow RREs to either update their own internal data or contact the BCRC for a correction.^[1]

In a nutshell, starting in July 2023, RREs will be able to “opt-in,” via the Section 111 Coordination of Benefits Secure Website (COBSW) application, to receive a monthly NGHP Unsolicited Response File.^[2] This will provide key information about updates to ORM records, originally submitted by the participating recipient RRE, within the last 12 months, and allow RREs to either update their own internal data or contact the BCRC for a correction.^[3]

In the big picture, this new “opt-in” feature incorporates a trend (perhaps troubling trend in the eyes of many RREs) that has been occurring over the past several years where CMS has been allowing another party – other than the actual RRE – to make changes to the Section 111 ORM records. In this regard, this trend has deviated from CMS’s historical practices as more fully discussed in the endnote to this sentence.^[4] Thus, RREs may consider taking advantage of this upcoming “opt-in” process to ensure their Section 111 ORM records have not been updated inappropriately.

2. Where can I find information about this new process?

Information regarding this process can be found in CMS’s current User Guide: NGHP Section 111 User Guide (Version 7.1., April 24, 2023). See, Chapter IV, Chapter 7, Section 7.5 and Chapter V, Appendix F.^[5]

3. Will CMS be holding a webinar to discuss this new process?

Yes. CMS is holding a webinar on June 6, 2023 at 1:00 p.m. ET. To attend CMS’s webinar, follow CMS’s instructions as contained in CMS’s webinar notice.

4. What are key points to know about this process?

Key points to consider regarding CMS’s forthcoming Section 111 NGHP Unsolicited Response File process include:

Process highlights - This is an optional process. Interested RREs can opt in via the Section 111 Coordination of Benefits Secure Website (COBSW) application to receive a monthly NGHP Unsolicited Response File. This process will provide RREs with information about updates made to their ORM records originally submitted in the last 12 months and allow RREs to either update their own internal data or contact the BCRC for a correction.^[6]Per CMS, this process starts “July 2023.”^[7]

Response records will contain information about the source of, and reason for, the update - Each NGHP Unsolicited Response File record will return a “Modifier Type Code” value which will indicate the type of entity from which CMS received the information utilized to update the RRE’s ORM coverage record as well as a “Modifier Name” which provides the entity name or description.^[8] In addition, each NGHP Unsolicited Response File record will return a “Change Reason Code” which will provide information about the reason for the update and/or the type of update applied.^[9]

Certain modifier type codes have been removed - CMS recently removed the following modifier type codes from this process: (1) CEM (Employer/Other Plan Sponsor Name); (2) CIN (Insurer Name), DSA (Name of the Voluntary Data Sharing Agreement (VDSA) entity); and (3) PRV (From a Provider).^[10] Accordingly, CMS states that these codes will not be used in the NGHP Unsolicited Response File.^[11]

Authors’ Notes

While CMS indicates that modifier type code “CIN (Insurer Name)” has been removed from Table 7-3, from the authors’ review of this table, this code has not actually been removed. Thus, it is unclear whether CMS intended to remove this modifier code and simply neglected to do so, or if their summary of updates may have simply been erroneous. From another angle, as noted above, modifier type codes related to employers/other sponsors (“CEM”), voluntary data sharing agreement entities (“DSA”) and providers (“PRV”) have been removed from the table as they “will not be used.” Accordingly, one might reasonably assume that this would indicate that CMS will not accept updates to NGHP Section 111 records from these types of entities. However, CMS does not specifically state this and, as such, this may be an item for further clarification by CMS. Assuming this is indeed CMS’s intention, this change may alleviate concerns that some RREs may have about these entities being allowed to update RREs’ ORM coverage records.

Certain fields have been removed - CMS also recently announced that the Relationship Code, Policy Holder’s First Name, Policy Holder’s Last Name, and Policy Holder’s SSN fields will not be used in the NGHP Unsolicited Response File layout and have been replaced with filler in the layout description.^[12]

Authors’ Notes

Of note, these four data elements were previously defined as fields 20 through 23, respectively, in the initially released Chapter V of User Guide (Version 7.0). Now, as part of CMS’s “update,” field 20 (formerly Relationship Code) is now defined as “filler” while fields 21 through 23 (former policy holder related fields) have been entirely removed. The displacement value (position of the data element within the flat file layout) provided for the new field 20 now encompasses that of the old field 20 in combination with that of the old fields 21 through 23. Field numbers for attorney specific information, which formerly began in field 24, have been adjusted and now begin with field 21 after the removal of the policy holder specific data elements. That said, as the current displacement/spacing of filler found in the new field 20 has been adjusted to encompass the prior fields 21 through 23, the displacement/position of the attorney specific and subsequent fields has not changed within the file format despite the relabeling of associated field numbers.

5. What are other questions regarding this process?

In addition to the above questions, there are several other points which remain outstanding (or unclear) as follows:

First, it remains unclear exactly which data elements CMS will allow a non-RRE party to change. Based on observations of recent trends, and given the information published regarding the new Unsolicited Response File process, it appears that CMS will terminate ORM and may even delete Section 111 ORM coverage records altogether per information received from these non-RRE parties. However, other types of updates which CMS may allow are presently less clear. For example, there are questions regarding whether CMS will allow ICD codes to be updated by a non-RRE party. If so, how those changes would be relayed to the RRE is unclear as, currently, there are no fields within the Unsolicited Response File Layout pertaining to ICD codes.

Second, it is unknown what CMS might mean when indicating an “Insurance Information Change” has occurred as reflected via a Change Reason Code value of “II” (See User Guide, Version 7.1, Chapter IV, Table 7-4 “Change Reason Description”). In relation to this, is CMS contemplating allowing changes to the insurer information to something other than that of the Section 111 RRE that initially reported the coverage?

Third, it is unclear what CMS may mean with respect to the “UK” (Unknown) Change Reason Code and what could be potentially encompassed as part of this type of update.

6. How could this process impact Section 111 civil money penalties (CMPs)?

This is unknown and unclear. CMS’s current CMPs proposals were released in February 2020, before CMS formally unveiled its “opt-in” Section 111 NGHP Unsolicited Response File process this year. Thus, the current CMPs proposals contain no information or reference regarding how the agency may consider changes, applied by CMS, to an RRE’s Section 111 ORM records based on information provided by non-RRE parties in determining whether to levy Section 111 CMPs.^[13]

On this point, given that CMS’s upcoming process is “optional,” a key question is what responsibility may an RRE have to correct erroneous updates that CMS may apply to their Section 111 ORM records? This is a particularly interesting question given that CMS will essentially allow the Section 111 ORM records to be changed by parties who typically lack experience with the requirements related to Section 111, not to mention the underlying law or other authority related to the claim. As such, allowing the Section 111 ORM records to be changed by parties lacking this critical experience will very likely result in changes to the RRE’s filed Section 111 records based on inaccurate information.

Given this reality, legitimate concerns surface regarding Section 111 CMPs. Specifically, a key point is whether, from a larger policy perspective, allowing parties to update a Section 111 ORM record, other than the actual RRE, makes sense – especially since the RRE remains ultimately responsible for the accuracy of Section 111 reporting and, at the end of the day, is the party subject to Section 111 civil money penalties.^[14] As such, it will be interesting to see if CMS modifies its current CMPs proposals to account for this fact as it moves toward releasing its “final” CMPs rule.

Special note for Verisk Section 111 reporting customers

Please note that for customers reporting through one of Verisk's S.111 reporting solutions, you will be able to view and/or intake the new file and trigger a claim to be resubmitted for correction, even if no updates have been made by the RRE. While several open questions remain about the new process, as noted above CMS has scheduled a webinar on June 6^th at which time additional clarity is expected to be provided. Further specifics will follow shortly thereafter to our customers. If you are not a current Section 111 reporting customer but would like more information about our Section 111 reporting solution, MSP Navigator, please do not hesitate to contact us at support@mspnavigator.com.

Questions?

The authors will continue to monitor developments on this front and provide updates as warranted. In the interim, do not hesitate to contact us if you have any questions.

[1] See, CMS’s Section 111 NGHP User Guide, (Version 7.0, January 9, 2023), Chapter I and Chapter IV (“Summary of Version 7.0 Updates” pages) and CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix N. See also, CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7, Section 7.5.

[2] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7 Section 7.5.

[3] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix N.

[4] Historically, from the authors’ experience, at the beginning of the Section 111 reporting process, CMS had instructed its contractors not to apply updates to Section 111 ORM records based on information received from sources other than the RRE. In those situations, CMS would typically direct the individual/entity providing the contradictory information back to the RRE to discuss any appropriate corrections to the Section 111 ORM record as submitted by the RRE. In situations involving a request for ORM termination, CMS would also typically send a letter to the RRE informing them of the receipt of that contradictory information. The RRE would be instructed that they could submit an update, if appropriate, via the Section 111 process or that they could reach out to the BCRC to request and/or provide additional clarifying details. In those scenarios, if the RRE did not reach out directly or submit an update via the Section 111 process, the Section 111 record would remain as previously reported by the RRE. However, from the authors’ experiences, CMS’s approach as outlined above, has started to change over the past few years in that it has become more common for CMS to permit the BCRC to allow and apply updates to the Section 111 ORM record based on information received by a party other than the RRE. Most of time, it is the claimant who provides information leading to a change in the Section 111 ORM record. In these situations, CMS, unlike prior practice, makes the change without notifying the RRE. One partial exception to this regards ORM termination. In this scenario, the authors find that CMS continues to send letters to the RRE. However, contrary to prior practice, CMS has typically already applied the change to the RRE’s Section 111 ORM record. Thus, RREs may need to follow up with the BCRC to ensure that their Section 111 ORM record was not updated inappropriately.

[5] By way of background, in January, CMS released initial information regarding the Unsolicited Response File as part of NGHP Section 111 User Guide (Version 7.0, January 9, 2023). In early February, CMS released a “updates” to User Guide (Version 7.0) on February 1, 2023 and February 3, 2023 to modify several data elements and associated codes which were apparently inaccurate as outlined in Chapter IV and V of User Guide (Version 7.0). Specifically, as discussed below, CMS removed certain modifier codes and fields from this process. Of note, CMS did not actually issue a new User Guide, rather it simply announced that it made “updates” to certain parts Chapter IV and V as contained in User Guide (Version 7.0). Thus, readers had to be very careful to re-download Chapters IV and V to ensure that they were working with the most current version.

For more information, see the authors’ prior articles:

[6] See, CMS’s Section 111 NGHP User Guide (Version 7.0, January 9, 2023), Chapter I and Chapter IV (“Summary of Version 7.0 Updates” pages) and CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix N. See also, CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7, Section 7.5.

[7] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7, Section 7.5.

[8] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7, Section 7.5, Table 7-3 and CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix F.

[9] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter IV, Chapter 7, Section 7.5, Table 7-4 and CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix F.

[10] CMS’s Section 111 NGHP User Guide (Version 7.0, January 9, 2023), Chapter IV, Chapter 1 (“Summary of Version 7.0 Updates” page) and CMS’s Section 111 NGHP User Guide (Version 7.0, January 9, 2023) Chapter IV, Chapter 7, Section 7.5, Table 7-3. As also referenced in n.5 above, CMS published three separate iterations of NGHP User Guide Version 7.0 (rather than issuing new Version updates), all of which contained separate and distinct updates. In this regard, the documents all reflect the original January 9, 2023, publication date, but revised iterations were subsequently posted on February 1, 2023 and February 3, 2023. With all this noted, the specific updates highlighted were only noted within the iteration posted on February 1, 2023.

[11] CMS’s Section 111 NGHP User Guide (Version 7.0, January 9, 2023), Chapter IV, Chapter 1 (“Summary of Version 7.0 Updates” page) and CMS’s Section 111 NGHP User Guide (Version 7.0, January 9, 2023) Chapter IV, Chapter 7, Section 7.5, Table 7-3. As also referenced in n.5 above, CMS published three separate iterations of NGHP User Guide Version 7.0, all of which contained separate and distinct updates. The documents all reflect the original January 9, 2023 publication date but revised iterations were subsequently posted on February 1, 2023 and February 3, 2023. The specific updates highlighted here were only noted within the iteration posted on February 1, 2023.

[12] CMS’s Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix N.

[13] For information on CMS’s Section 111 CMPs, see our recent articles:

[14] See e.g., 42 U.S.C. 1395y(b)(8) and Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter III, Chapter 6, Section 6.2 and Section 111 NGHP User Guide (Version 7.1, April 24, 2023), Chapter V, Appendix H (”MMSEA Statutory Language.