Proposed Rule on MSP and Future Medicals Scheduled for Release in August 2020; Updated NGHP User Guide Version 5.9 Available
Heather Sanderson
July 1, 2020

The Proposed Rule which would clarify MSP obligations “associated with future medical items and services related to liability insurance (including self-insurance), no-fault insurance, and workers’ compensation settlements, judgments, awards or other payments” has been updated for a scheduled release next month (August 2020). The Proposed rule was previously scheduled for release in February 2020. Our prior blog on this Proposed Rule can be found here.

This Proposed Rule, if finalized, would create requirements via final regulation for protection of Medicare’s future interests via Workers’ Compensation MSAs, No-Fault and Liability MSAs. The industry has been awaiting to determine if the Centers for Medicare & Medicaid Services (CMS) would continue to move forward with these regulations which would now require LMSAs or other mechanism to ensure the future burden for future medicals is not shifted to Medicare where a No-Fault or General Liability primary payer is available. Further, the description of the Proposed Rule seems to indicate that CMS could potentially modify the long-standing WCMSA approval process, which formally has been functioning for nearly 20 years since 2001 when CMS released the “Patel Memo.” It would seem that CMS intends on pursuing this Proposed Rule into becoming a Final Rule, or it would have withdrawn the Proposed Rule posting rather than postponing its delay date to next month.

Additionally, an updated NGHP User Guide Version 5.9 is available here. The minor updates are the following:

  • A reminder has been added that while the threshold for physical trauma-based liability insurance settlements remains 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. (Sections 6.4.2, 6.4.3, and 6.4.4).
  • The limit dollar amount that triggers a threshold error has been adjusted from $99,999,999 to $99,999,999.99. This error occurs any time the No-Fault Insurance Limit amount or the cumulative value of all reported TPOCs (detailed and auxiliary records) exceed this limit. Additionally, the No-Fault Insurance Limit field number has been corrected under “Exceptions.” (Section 7.3.2).
  • When considering the requirements for the Ongoing Responsibility for Medicals (ORM), remember, per current policy, that the dollar limit for No-Fault Insurance Limits (Field 61) represents a combined total of Med-Pay and Personal Injury Protection (PIP) (Section 6.7.1). Also see Appendix A.
  • Several no-fault excluded ICD-10 codes have been removed from the Excluded ICD-10 and ICD-9 Diagnosis Codes table (Appendix I).  
  • The CR02 claim response file error code field number has been corrected (Appendix F) (Table F-4).

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