From the authors’ recent experience, a growing challenge noted by some Section 111 non-group health plan Responsible Reporting Entities (RREs) involves the inability to submit non-binary or unspecified gender designations as part of the Centers for Medicare and Medicaid Services (CMS’s) Query Process tool to determine Medicare status. Presently, CMS’s Query Process can only accept “Male” or “Female” gender values.
In a nutshell, this issue stems from the fact that CMS receives its data feed from the Social Security Administration (SSA), and currently the SSA’s system cannot accept non-binary or unspecified gender designations. The SSA is reportedly exploring options to address this issue, although no specifics or timetables have been provided. It is also noted that CMS has not released any statements or information regarding this matter. However, as discussed below, while the RRE may not be able to submit non-binary or unspecified gender designations currently, this may not necessarily prevent them from still determining an individual’s Medicare status using the other Query Process data points.
The following provides further details regarding this issue:
Query Process – refresher
CMS’s Query Process is a tool the agency established to help RREs determine an individual’s Medicare status as part of Section 111 reporting. Currently, CMS’s Query Process accepts the following data points to help determine if an individual is a Medicare beneficiary: (1) Medicare ID or social security number (SSN); (2) first name; (3) last name; (4) date of birth; and (5) gender (M/F). Of note, CMS will accept the last five digits of the individual’s SSN, although providing the full SSN, if possible, is preferable as the full SSN is more precise and will increase the likelihood of a positive beneficiary match.
Once the necessary data points are submitted, the BCRC must find an exact match on the Medicare ID or SSN (i.e., either an exact match on the last 5 digits or full 9-digit SSN). Thereafter, at least three out of the four remaining matching criteria must match exactly if the full SSN is provided, and all four remaining data points if a partial SSN is used. If there is a match, the Query Process returns the individual’s Medicare ID. In addition, the Query Process provides information regarding plan enrollment including the 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 (if applicable); and the most recent Part A and Part B entitlement dates.
Query Process/SSA connection
Important to the issue at hand is the fact that CMS obtains the information reported via the Query Process through the Social Security Administration (SSA). CMS notes as follows in its Section 111 NGHP User Guide: “Medicare’s files are updated by a feed from the Social Security Administration (SSA) so if a beneficiary updates their information with SSA, it will be fed to the BCRC and used in the matching process.” (author’s emphasis).
This connection between CMS’s Query Process and the SSA relates directly to the current issue regarding the RRE’s inability to report non-binary or unspecified gender designations. Specifically, this stems from the fact that the SSA’s system cannot accept a non-binary or unspecified “sex designation” at this time.
On this point, the SSA states, in part, as follows as part of an FAQ page on its website: “Currently, our record systems require a sex designation of female or male, and cannot accommodate a non-binary or unspecified sex designation, such as X. We are examining ways to address this in the future.” (authors’ emphasis).  The SSA’s website contains no further information regarding exactly what the agency may be exploring or any related timetable. Also, to the authors’ knowledge, CMS has not issued any statements or other communications regarding this matter.
Thus, per the above, until the SSA’s system is changed to accommodate non-binary or unspecified gender designations (or unless CMS develops some type of work-around, if that is at all possible) RREs will not be able to submit non-binary or unspecified gender designations. However, this may not necessarily prove fatal in terms of determining an individual’s Medicare status. In this regard, keep in mind, as noted above, if the individual’s full SSN is submitted, this determination can still be made if at least three out of the four remaining data points are matched. For example, an RRE could submit a full SSN combined with the First Name, Last Name and DOB; and if all those data elements match to a beneficiary profile in CMS’s system, a positive eligibility response will be returned even without a match on the gender value.
From a more macro view, it is interesting to contemplate whether CMS should consider including the RRE’s inability to submit non-binary or unspecified gender designations regarding its Section 111 reporting good-faith compliance “safe harbor” proposals in relation to CMS’s proposed Section 111 civil money penalties (CMP).
On this point, in general, CMS proposes to provide RREs with a Section 111 reporting compliance safe harbor “[i]f an NGHP entity fails to report required information because the NGHP entity was unable to obtain information necessary for reporting from the reportable individual, including an individual’s last name, first name, date of birth, gender, MBI, or SSN (or the last 5 digits of the SSN), and the responsible applicable plan has made and maintained records of its good faith effort to obtain this information” by following certain steps outlined by CMS.
As will be noted, CMS’s current CMPs proposals contemplate providing a safe harbor where the RRE is unable to obtain certain identifying information to submit through the Query Process. The issue regarding non-binary or unspecified sex designations, however, is different in the sense that the RRE can secure identifying information from the individual but is unable to submit it because of SSA and CMS system limitations. Thus, given this, an argument could potentially be made that CMS should expand its proposed safe harbor provisions to include situations where the RRE is unable to determine an individual’s Medicare status because CMS’s Query Process is unable to accommodate non-binary or unspecified sex designation information provided to the RRE.
In this regard, it is interesting to note that several states have already implemented ways for individuals to update governmental records with non-binary gender designations. For example, one source reports that by this June, 22 states (including New York and California), along with Washington, D.C. will allow residents to select a gender-neutral “X” gender marker on their driver’s licenses, birth certificates or other identification documents. It remains unclear if and when the SSA and CMS may also move toward updating its systems similar to the updates being made at the state level.
The authors will continue to monitor this issue and provide updates as warranted. In the interim, please do not hesitate to contact the authors if you have any questions.
 CMS’s Section 111 NGHP User Guide, Chapter IV (Version 7.1, April 24, 2023), Section 8.1. See also, CMS’s “Model Language” document https://www.cms.gov/files/document/mmsea-111-mbi-ssn-collection-nghp-model-language.pdf which states, in part, that an individual may provide the last five digits of the SSN. Regarding the accuracy of CMS’s beneficiary matching process, when comparing the use of either the full or partial SSN, see CMS’s Section 111 NGHP User Guide, Chapter V (Version 7.1, April 24, 2023), Appendix G. In addition to the requirement to match on all 4 additional data elements (First Name, Last Name, DOB & Gender), in comparison to the 3 out of 4 matching requirements for full SSNs, there is also the possibility of a duplicate match occurring when a partial SSN is utilized. In such a scenario, CMS will return a ‘DP’ (duplicate) disposition code to indicate that the data elements submitted resulted in a match to more than one beneficiary profile in their system. When this occurs, the RRE may need to resubmit using the full SSN or, if that is not possible, may need to perform manual outreach to CMS’s BCRC contractor to appropriately identify a potential beneficiary match and report the required coverage information. As such, use of the full SSN is preferable whenever possible.
 See, CMS’s Section 111 NGHP User Guide, Chapter V (Version 7.1, April 24, 2023), Appendix E.
 CMS’s Section 111 NGHP User Guide, Chapter IV (Version 7.1, April 24, 2023), Section 6.1.1.
As contained in the above referenced link, the applicable FAQ is: How do I change the sex identification on my Social Security record? In relation to this FAQ, the SSA states, in part, as follows: “To change the sex identification on your Social Security record, you do not need to provide medical or legal evidence of your sex designation You will need to provide evidence to prove your identity, and sometimes citizenship or immigration status. The sex identification, if shown on your evidence document, can be binary (male or female) or non-binary (such as X). The sex identification does not have to match the sex identification currently on your Social Security record, or the sex identification you request. Currently, our record systems require a sex designation of female or male, and cannot accommodate a non-binary or unspecified sex designation, such as X. We are examining ways to address this in the future.”
 See, 85 Fed. Reg., No. 32, 8880 (Feb. 18, 2020).
This proposal states in full as follows:
If an NGHP entity fails to report required information because the NGHP entity was unable to obtain information necessary for reporting from the reportable individual, including an individual’s last name, first name, date of birth, gender, MBI, or SSN (or the last 5 digits of the SSN), and the responsible applicable plan has made and maintained records of its good faith effort to obtain this information by taking all of the following steps:
The NGHP has communicated the need for this information to the individual and his or her attorney or other representative and requested the information from the individual and his or her attorney or other representative at least twice by mail and at least once by phone or other means of contact such as electronic mail in the absence of a response to the mailings.
The NGHP certifies that it has not received a response in writing, or has received a response in writing that the individual will not provide his or her MBI or SSN (or last 5 digits of his or her SSN).
The NGHP has documented its records to reflect its efforts to obtain the MBI or SSN (or the last 5 digits of the SSN) and the reason for the failure to collect this information.
The NGHP entity should maintain records of these good faith efforts (such as dates and types of communications with the individual) in order to be produced as mitigating evidence should CMS contemplate the imposition of a CMP. Such records must be maintained for a period of 5 years. The current OMB control number assigned to this information collection effort, as required under the Paperwork Reduction Act, is 0938–1074. 85 Fed. Reg., No. 32, 8880 (Feb. 18, 2020).
 https://thehill.com/changing-america/respect/diversity-inclusion/3507206-here-are-the-states-where-you-can-and-cannot-change-your-gender-designation-on-official-documents/ For additional information, see also https://www.lgbtmap.org/equality-maps/identity_document_laws and https://www.usbirthcertificates.com/articles/gender-neutral-birth-certificates-states