On February 23, 2024 the Centers for Medicare and Medicaid Services (CMS) released an alert seeking to expand the Section 111 reporting requirements for Non Group Health Plans (NGHPs) See MMSEA S111 GHP Alert (cms.gov). The expansion goes well beyond the general statutory requirement in 42 U.S.C. 1395y(b)(7)&(b)(8), and would impact self-insured employers,  workers’ compensation plans, and injured workers with respect to settlements of workers’ compensation claims and conditional payment recovery amounts demanded by CMS. The alert expands requirements based on no new statutory language and without the authority of federal regulations. This Alert is the latest effort from CMS to effectively nationalize the terms of workers’ compensation settlements and payments through required reporting and effective federal pre-emption without authority.

There is no question that workers’ compensation should be primary with respect to illness and injury in the course of employment and arising from employment. However, the determination of workers’ compensation payments must be made pursuant to the applicable workers’ compensation law. Also, CMS fails to recognize the important distinction that workers’ compensation settlements typically include amounts for indemnity or wage replacement that are not related to future medical expenses.

New clarification of the law to apply with respect to workers’ compensation settlements and individuals who are Medicare-eligible is needed. UWC supports bi-partisan legislation introduced by Congressman Mike Carey (OH) and Mike Thompson (CA) to clarify the appropriate determination of workers’ compensation settlement amounts and Medicare Set-Aside arrangements. See HR 7368 Text – H.R.7368 – 118th Congress (2023-2024): COMP Act | Congress.gov | Library of Congress