By Heather Sanderson, Mike Gibbon and Jeremy Farquhar
The Centers for Medicare and Medicaid Services (CMS) has released an updated Section 111 NGHP User Guide (Version 6.0, October 5, 2020) regarding non-group health plans (liability, no-fault, and workers’ compensation). This updated guide replaces Version 5.9 (June 29, 2020). Also, separately, CMS has released updated versions of both their accepted and excluded ICD-9 and ICD-10 code listings for 2021.
Regarding the updated User Guide, CMS, as usual, lists its updates in the beginning of each User Guide chapter in a “Summary” page. Reviewing these pages indicates that CMS has made updates to Chapter III (Policy Guidance) regarding the calculation of the total payment obligation to the claimant (TPOC) amount providing updated guidance around “property damage only” claims and “indemnity only” settlements. CMS also made updates to Chapter V (appendices) regarding updates to no-fault excluded diagnosis codes.
In general, CMS’s changes and updates are summarized as follows:
TPOC amount calculation updated
In Chapter III, Section 6.4, CMS added specific items to be included in calculating the TPOC amount for Section 111 reporting purposes.
Section 6.4 as updated now reads as follows (with the new provisions underlined):
The TPOC Amount refers to the dollar amount of a settlement, judgment, award, or other payment in addition to or apart from ORM. A TPOC generally reflects a “one-time” or “lump sum” settlement, judgment, award, or other payment intended to resolve or partially resolve a claim. It is the dollar amount of the total payment obligation to, or on behalf of the injured party in connection with the settlement, judgment, award, or other payment. Individual reimbursements paid for specific medical claims submitted to an RRE, paid due the RRE’s ORM for the claim, do not constitute separate TPOC amounts. 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. The TPOC Date is not necessarily the payment date or check issue date. The TPOC Date is the date the payment obligation was established. This is the date the obligation is signed if there is a Section 111 NGHP User Guide Chapter 6: Responsible Reporting Entities 6-14 written agreement, unless court approval is required. If court approval is required, it is the later of the date the obligation is signed or the date of court approval. If there is no written agreement, it is the date the payment (or first payment if there will be multiple payments) is issued. Note: Please refer to the definition of the TPOC Date and TPOC Amount in Fields 80 and 81 of the Claim Input File Detail Record in the NGHP User Guide Appendices Chapter V.
As underlined above, CMS’s updated provisions provide a degree of clarity regarding specific items that CMS expects to be included when calculating the TPOC amount. Before this update, the NGHP User Guide referenced the TPOC amount referring to the dollar amount of a settlement, judgment, award, or other payment in addition to or apart from ORM. However, until now, there was a lack of specificity around whether attorneys’ fees, MSA amounts, conditional payments, and other items, as referenced in the underlined verbiage above, were includable in the TPOC amount to be reported to CMS. Overall, Responsible Reporting Entities (RREs) will likely find these updates helpful concerning their Section 111 reporting obligations and in light of CMS’s outstanding Section 111 civil money penalty (CMP) proposals.
While these updates provide helpful guidance, a few questions are likely to arise, particularly around conditional payments. Specifically, CMS’s updated language references that “repayment of conditional payments” is includable as part of the TPOC amount. However, because a conditional payment final demand is often not obtained until after the final settlement occurs, RREs may not know the exact amount of the conditional payment when the TPOC must be reported. In turn, this would seemingly raise a few questions such as: should RREs utilize an estimated amount for the conditional payments when calculating TPOC? Alternatively, would it be wise for RREs to use the delayed reporting TPOC function? The latter option would seem not to be a reasonable long-term approach. Accordingly, this is an area that would likely benefit from further clarity and guidance from CMS.
Updates regarding “property damage only” claims and “indemnity only” settlements
Also, CMS made updates to Chapter III, section 6.5.1 regarding property damage only claims and indemnity only settlements.
The updated language reads as follows:
RREs are not required to report liability insurance (including self-insurance) settlements, judgments, awards or other payments for “property damage only” claims which did not claim and/or release medicals or have the effect of releasing medicals. Similarly, “indemnity-only” settlements, which seek to compensate for non-medical damages, should not be reported. The critical variable to consider is whether or not a settlement releases or has the effect of releasing medicals. If it does, regardless of the allocation (or lack thereof), the settlement must be reported.
Concerning indemnity only settlements, CMS mentioned in its recent Section 111 webinar that when future medical remains open on a claim (ongoing responsibility for medical/ORM), the lump sum indemnity only settlements are not reportable.
Updates to no-fault excluded ICD diagnosis codes
CMS also made updates to Chapter V (Appendix J) regarding ICD codes excluded for purposes of no-fault reporting for the year 2021. For specifics, please refer to Appendix J beginning on page J-1 of Chapter V.
Newly published accepted and excluded ICD code listings
In addition to the updates to Chapter V, Appendix J, referenced in the preceding section, CMS has also separately published updated versions of their accepted and excluded ICD-9 and ICD-10 code listings for 2021. These updated listings can be accessed via the Reference Materials file menu on their Section 111 web portal. Please note you must be logged into the portal for the excluded code listings to be visible.
Please contact the authors if you have any questions regarding these updates or any Section 111 issues or questions in general.