CMS Updates Section 111 Reporting User Guide – Expands Definition of “Spouse” to Include Same-Sex Marriages

The Centers for Medicare and Medicaid Services (CMS) on October 6th released an updated User Guide to Section 111 Reporting for Non-Group Health Plans to meet Medicare Secondary Payer reporting requirements. The full posting may be found at http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Mandatory-Insurer-Reporting-For-Non-Group-Health-Plans/NGHP-User-Guide/NGHP-User-Guide.html

The following updates were made to Chapter 1of the user guide:

The Department of Health & Human Services has adopted a policy treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. Any same-sex marriage legally entered into in a U.S. jurisdiction that recognizes the marriage – including one of the 50 states, the District of Columbia, or a U.S. territory — or a foreign country, so long as that marriage would also be recognized by a U.S. jurisdiction, will be recognized. Consistent with this policy and the purpose of the MSP provisions, effective January 1, 2015, the rules below apply with respect to the term “spouse” under the MSP Working Aged provisions. This is true for both opposite-sex and same-sex marriages as described herein.

  • If an individual is entitled to Medicare as a spouse based upon the Social Security Administration’s rules, that individual is a “spouse” for purposes of the MSP Working Aged provisions.
  • If a marriage is valid in the jurisdiction in which it was performed as described herein, both parties to the marriage are “spouses” for purposes of the MSP Working Aged provisions.
  • Where an employer, insurer, third party administrator, GHP, or other plan sponsor has a broader or more inclusive definition of spouse for purposes of its GHP arrangement, it may (but is not required to) assume primary payment responsibility for the “spouse” in question. If such an individual is reported as a “spouse” pursuant to MMSEA Section 111, Medicare will pay accordingly and pursue recovery, as applicable.

This change raises a number of administrative and benefit eligibility issues with respect to coordination with state workers’ compensation, particularly in states that have not adopted a broader and more inclusive definition of “spouse”; not to mention the complication of changing legal status when moving from one state to another or when working in multiple locations for multiple employers. If a worker is deceased due to an on the job injury does the new reporting requirement affect the definition of surviving spouse for purposes of entitlement to death benefits under the applicable workers’ compensation law? Are there cost implications from the federal definitional change? If there is a dispute as to whether an individual qualifies as a spouse what substantive law applies?

In addition, the guide makes a number of updates, including:

Change Request (CR) 12120: When implemented, RREs will not be allowed to report ICD-10 “Z” codes. These are now excluded from Section 111 claim reports (Chapters IV & V).

CR 12178: Missing excluded ICD-10 codes added to Appendix J, Chapter V.

CR 12373: Updated to reflect the delay of ICD-10 diagnosis code implementation from October 2014 to 2015 (Chapters IV & V).

CR 12590: For ICD-10 changes, field numbering/layout discrepancies were corrected in Table A-2 (Claim Input File Supplementary Information), Chapter V.

CR 12170: Two threshold error checks for the Claim Input File were implemented in July 2011. These errors are related to the dollar values reported for both the cumulative TPOC amounts and the No-Fault Insurance Limit (Chapter IV).

CR 12593: Reviewed to ensure that spouse references are gender-neutral according to DOMA.

CR 12636: The Appendix L alerts table has been removed and replaced with links to the Section 111 web site, which posts all current alerts and stores all archived alerts (Chapter V).

CR 12829: Updated CS field numbers in Table F-4 (Claim Response File Error Code Resolution Table) to accommodate ICD-10 revisions (Chapter V).

We are reviewing the impact of these changes for comment.