The Centers for Medicare and Medicaid Services (CMS) has released an updated Section 111 NGHP User Guide (Version 7.0, January 9, 2023) regarding Section 111 reporting related to non-group health plans (liability, no-fault and workers’ compensation). Version 7.0 contains several different updates and changes which are summarized in general as follows:
Monthly NGHP Unsolicited Response File (starting July 2023)
This is the update which will likely garner the most interest (and likely concern) with RREs.
To unpack this change, we first note the following as stated by CMS in the “Summary” of changes pages in Chapter I and Chapter V of the User Guide:
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 (Chapter 7).
Based on the above text, this update indicates that CMS will permit other parties – other than the actual Section 111 RRE – to make updates to the Section 111 record submitted by the RRE. In this regard, this update can be viewed as incorporating a trend (perhaps troubling trend in the eyes of many RREs) that has been occurring over the past several years which can result in another party – other than the actual RRE – making changes to the Section 111 record filed by the RRE. Reviewing some history on this point may help put this change – and its significance- in better perspective.
In this regard, from the authors’ experience with Section 111 reporting from its inception, at the beginning of the Section 111 reporting process, CMS had instructed its contractors not to apply updates to Section 111 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 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 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 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 record. Thus, RREs may need to follow up with the BCRC to ensure that their Section 111 record was not updated inappropriately.
From a practical perspective, CMS’s decision to allow updates to be applied to the RRE’s Section 111 records based on information from other parties without first confirming the accuracy or validity of those updates with the RRE will likely raise concerns on several levels.
First, as noted above, most often it is the claimant providing information that leads to a change in the RRE’s filed Section 111 record. However, it is doubtful that the typical claimant understands the rules governing Section 111 reporting, the way coverage records are expected to be maintained by RREs, the concepts and requirements related to ORM, and the underlying law or other authority related to the claim. Thus, allowing the Section 111 record to be changed by parties lacking the experience in these areas raises concerns the CMS may be allowing, in many instances, updates based on inaccurate information without, as they had in the past, first directing the issue to the RRE for their review and follow-up with the party to discuss the situation to determine if a change to the record is in fact warranted.
Second, some of the other specifics related to this change are puzzling from the authors’ viewpoint. On this point, CMS’s connection of certain data elements regarding this change to the NGHP reporting process, or the relation to NGHP coverage in general, would appear highly questionable. For example, CMS provides a list of “Modifier Type Codes” and “Modifier Names” to be returned, in fields 32 and 33 respectively, as part of the Unsolicited Response File (See, Chapter IV, Chapter 7, Section 7.5, Table 7-3: Modifier Type Code and Modifier Name). These are intended to provide the RRE with insight into the “updating source.” In reviewing the “Modifier Type Codes” (field 32) there are entities listed thereon that would not typically have a direct connection to NGHP related coverage, such as “Modifier Type Code” “CEM” which represents an “Employer/Other Plan Sponsor” related update or “DSA” which represents an update received from “Voluntary Data Sharing Agreement (VDSA)” entity. Also worth noting are some additional fields included within the file layout (Chapter V, Appendix F) which also would not initially appear to be relevant to NGHP reporting. Examples include the “Relationship Code” (field 20) for which the description outlines as the “Covered Individual’s Relationship to Active Employee” or the “Policy Holder’s SSN” (field 23). The former would seem more likely to be related to GHP coverage while the latter is not something that CMS collects via the Section 111 reporting process and would therefore not have the capability to provide. In addition, there are other listed parties in the “Modifier Type and Modifier Name” table (Chapter IV, Chapter 7, Section 7.5, Table 7-3) which raise questions as to who exactly CMS may allow to request updates to the Section 111 record. Some examples on this point include reference to “PRV,” which would represent a provider update, or “WCS” would represent updates applied directly via the Worker’s Compensation Review Contractor (WCRC). While these parties have some connection to a NGHP claim, in the authors’ experience, they are not entities that CMS have historically allowed to make updates to Section 111 NGHP coverage records. The above reflect some examples, from a practical perspective, which may very well create confusion and concern regarding this forthcoming update.
When the dust settles, on the one hand, CMS’s introduction of CMS’s new Unsolicited Response File process will seemingly allow RREs to receive updates, via a new monthly Unsolicited Response File, which would alert them to any changes which have been made to their Section 111 records outside of their own electronic Section 111 reporting. However, in the bigger picture, questions will likely be raised regarding whether the larger policy of allowing other parties to update a Section 111 record makes sense – especially since the RRE remains ultimately responsible for the accuracy of Section 111 reporting and is the party subject to Section 111 civil money penalties. In this regard, it would not be surprising if RREs look for CMS to reconsider this change, or at least provide additional clarification.
Also, of note, although different than other update scenarios noted above, it has always been possible for an RRE to electronically update a Section 111 record submitted via a different RRE if the CMS DOI, Plan Insurance Type and ORM indicator (CMS key fields) match that of a prior Section 111 submission. RREs also have the ability to request updates to their own Section 111 records, outside of the electronic Section 111 reporting process, via a phone call to the BCRC’s call center. These would appear to be additional update scenarios which may be identified and returned as a part of the new NGHP Unsolicited Response File Process.
NOTE: CMS has since updated and modified certain information outlined above – see our update article to review CMS’s updates.
Recovery Agent Updates
As part of the Chapter IV updates, CMS states as follows in the “Summary” of changes page:
The information on recovery agents has been 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 MSPRP, if the agent has an active MSPRP account with a TIN matching one submitted on the RRE’s TIN Reference File (Section 18.104.22.168).
From the author’s view, CMS’s update clarifying that Recovery Agents need written authorizations to pursue post-demand actions is helpful as this has been a common point of confusion for many. As for the potential for Recovery Agents to access the Open Debt Report on the Medicare Secondary Payer Portal (MSPRP), the authors would not ultimately expect this to be terribly impactful in most scenarios since most Recovery Agents with MSPRP accounts have likely created their account using their own TIN. This is significant since, at present, only a single TIN may be associated with any given MSPRP account. As such, this is not likely to allow most Recovery Agents access to the Open Debt Report, unless they have also created a separate and distinct MSPRP account for every RRE for whom they provide services. In our experience, that would not be a common practice and would likely be overly burdensome for most Recovery Agents to maintain.
The “Summary” update page to Chapter IV reflects that CMS has made the following update regarding ORM:
ORM Termination Date field number 79 was corrected for the Event Table (Section 6.9.1). 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 (Section 7.5).
With respect to the referenced ORM Termination Date, from the authors’ review, it appears that CMS may have inadvertently referenced the incorrect Section 6.9.1 as part of Chapter IV in relation to the Event Table updates noted above. Specifically, the correct section appears to be Chapter IV, Chapter 6, Section 6.6.4, Table 6-12: Event Table and the updates were applied within Table 6-12. In the bigger picture, this update simply corrects an erroneous field number reference within a couple of the events outlined within Table 6-12. The ORM Termination Date was previously referenced as field 99 and this update corrects that to reflect field 79. The general substance of the updated events has not been altered. Regarding the referenced NGHP Unsolicited Response File, please see the information outlined in the “Monthly NGHP Unsolicited Response File (starting July 2023)” section above
CP13 soft edit – policy limit amount decreased from $1,000 to $500
In the “Summary” of changes page to Chapter V, CMS notes the following update: “The CP13 soft edit policy limit amount has decreased from $1000 to $500 (Appendix F).” Regarding this update, it is noted that CMS, in their 12/6/22 NGHP Section 111 Webinar, noted that this change was forthcoming. As such, CMS has now updated their CP13 soft edit error code accordingly so that an error will only be returned in scenarios where the submitted No-Fault Insurance Limit is less than $500. Previously, the CP13 soft edit would have been returned in any scenario where the No-Fault Insurance Limit was less than $1,000. While sub-$1,000 policies may occur less frequently than policies with higher policy values, many RREs do offer these policies and, with this update, CMS seems to be recognizing this fact. Overall, this update should prevent the CP13 soft edit from being generated in relation to the applicable lower dollar policy scenarios, and this change will likely be well received by RREs that offer and report these coverages.
TIN Reference File/Go-Paperless
On this update, the “Summary” page of changes to Chapter V states: “For the TIN Reference File, the Go Paperless Indicator is no longer required when submitting the Recovery Agent TIN (Field 25) (Appendix G).” With respect to this change, from the authors’ review, it appears that CMS have modified their TN40 (Recovery Agent TIN) error in order that it will no longer be returned if a Recovery Agent TIN (TIN Reference File Field 25) is submitted where the Recovery Agent Paperless Indicator (TIN Reference File Field 24) is not submitted with a value of ‘Y’. With this change, the TN40 error should only be returned in situations where the Recovery Agent Paperless Indicator is submitted with a value of ‘Y’ and there is no MSPRP Account associated with the submitted Recovery Agent TIN.
$750 low dollar threshold retained for 2023
As reported in our recent article, in December CMS released an Alert advising that it was retaining its $750 low dollar threshold for reporting in 2023. CMS is now incorporating this information into Chapter III of the User Guide. CMS notes that information regarding the $750 low dollar threshold is contained in Chapter III in Sections 6.4.2, 6.4.3, 6.4.4, the full text of which is included in the endnote to this sentence. In reviewing CMS’s verbiage related to the $750 low dollar threshold, careful attention should be paid to which cases CMS’s “low dollar” threshold applies (and does not apply).
Please contact the authors if you have any questions regarding CMS’s updates as discussed above or other issues related to Section 111 reporting.
 See e.g., 42 U.S.C. 1395y(b)(8) and Section 111 NGHP User Guide (Version 7.0, January 9, 2023), Chapter III, Chapter 6, Sections 6.1 and 6.2.
 Section 6.4.2. No-Fault Insurance TPOCs
In pertinent part, this section states: “As of January 1, 2023, CMS will maintain the $750 threshold for no-fault insurance, where the no-fault insurer does not otherwise have ongoing responsibility for medicals. 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. RREs may submit TPOCs that are less than or equal to the TPOC dollar threshold and will not be penalized for doing so. Detailed reporting requirements are listed in the following table."
Section 6.4.3 Liability Insurance (including Self-Insurance) TPOCs
In pertinent part, this section states: “As of January 1, 2023, the threshold for physical trauma-based liability insurance settlements will remain at $750. 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.”
Section 6.4.4 Workers’ Compensation TPOCs
In pertinent part, this section states: “As of January 1, 2023, CMS will maintain the $750 threshold for workers’ compensation settlements, where the workers’ compensation entity does not otherwise have ongoing responsibility for medicals. 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.”