CMS To Expand Section 111 TPOC Reporting to Include Submitted and Non-Submitted MSA Information

by B. Smith

Updated: 11/21/23

– CMS provided a link to slides from their November 13 webinar on the What’s New page of the Mandatory insurer reporting (NGHP) section on CMS.gov.

– Link added to IMPAXX’s Section 111 Reporting: Expansion of TPOC Reporting to Include MSA Data webinar on 12/5/2023 at 2:00 pm ET.

On November 13, 2023, CMS held a webinar to discuss the expansion of the Section 111 Total Payment Obligation to Claimant (TPOC) field to include Medicare Set-Aside (MSA) amounts, structured settlement annuity amounts, and administration information. This reporting requirement would apply to both submitted MSAs and non-submit MSAs, allowing for some clarity in the post-settlement process.

Below are highlights from the webinar:

• CMS confirmed that submission of an MSA remains a completely voluntary process and the implementation of this requirement does not change the voluntary nature of submission.
• CMS noted that it will be expanding the existing Section 111 reporting process to capture all Workers’ Compensation claims involving Medicare beneficiaries where TPOC is reported and there is an MSA (or lack thereof). However, the expansion does not affect liability or no-fault claims.
• Submission of this additional data should be done regardless of whether the MSA was submitted to CMS for review, the parties utilized a non-submit MSA, or Ongoing Responsibility for Medicals (ORM) remains open for some, but not all, of the injuries involved in the claim.
• Data should be submitted to CMS regardless of the TPOC value.
• Once CMS receives the data, a ‘W’ record is posted in the Common Working File (CWF) to ensure that payment is not made by Medicare for medical services related to the injuries described by the diagnosis codes.
• CMS will send notification of the MSA to the beneficiary indicating the process for attestation and exhaustion of funds.
• CMS will update files where settlement has not been reported but a submitted WCMSA was utilized.
• The data collected will include the following:
  • Total MSA amount
  • If the MSA amount is greater than $0.00, the period of coverage in years (i.e., life expectancy)
  • For any MSA greater than $0.00, whether the settlement is to be paid in a lump sum or an annuity
  • If specified as an annuity, the initial seed amount and the annual deposit amount
  • Whether professional administration is being utilized and the Tax ID of the administrator if applicable (not listed as a required field)
• There will be no changes to the Response File Layout
• Errors found will be returned as a new soft or hard edit on the Claim Response File
• Can be completed using the current Section 111 file testing process – no special testing process is planned
• Notification will be given when testing can begin, and RREs should coordinate testing with their EDI representative
• The timeframe for this change is as follows:
  • Updated file layout/error codes – early 2024
  • Testing – Fall 2024
  • Implementation – January 2025

During the question-and-answer period, CMS also noted that MSA information should be submitted even if the settlement amount does not meet the current CMS WCMSA review threshold, which allows CMS to track under-threshold claims as well.

Thoughts and Takeaways

CMS has always noted that the parties to a settlement must reasonably consider its interest to prevent the cost shift to CMS to pay for injury-related Medicare covered medical expenses. An MSA is a tool to prevent this cost shift. With the implementation of this new requirement, CMS will be able to determine if an MSA was established by the parties, regardless of whether it was submitted for voluntary review or is a non-submit MSA.

Since the inception of Section 4.3 of the Workers’ Compensation Medicare Set-Aside Reference Guide (Guide) addressing non-submit MSAs, there has been a great deal of confusion regarding CMS’ treatment of allocations not submitted for review. Although CMS has made it clear that submission is voluntary, and that if its interests are reasonably considered, it will pay for a beneficiary’s Medicare-covered treatment after the exhaustion of the MSA, some confusion still exists. Allowing parties to report of the existence of all types of MSAs may represent another step towards clearing up this confusion.

In addition to reasonably considering Medicare’s interest with an MSA, administration of an MSA is also a key consideration. Whether through professional administration, or self-administration with support, post-settlement tools for the claimant are often imperative to his or her successful management of MSA funds. If an MSA is reasonable, but a claimant is unable to account for and properly spend the MSA, then they are at risk for future exposure. This new requirement will include a field that allows the parties to report if professional administration is being utilized, again illustrating the importance of post-settlement support.

Also of note, is the fact that CMS will be tracking cases that do not meet their current review threshold. As CMS has noted time and time again, thresholds are workload driven and do not exempt parties from considering Medicare’s interests. As such, below-threshold MSAs should be considered as part of settlements.

In summary, there are still kinks to be worked out as part of this process, including more complex settlements involving multiple parties and the current TPOC reporting threshold, but CMS indicated that it would continue to provide updates regarding this change. In addition, those who have questions can direct them to CMS at [email protected].

Don’t miss our webinar on Tuesday, December 5, 2023, at 2 pm EST where our team will review the expansion of TPOC reporting in further detail. In the meantime, if you have any questions, please contact the IMPAXX Settlement Consulting team at [email protected].