More Questions Remain – CMS’ August 2023 Update to the NGHP User Guide: ORM Triggers

Written by: Brendon De Souza, Esq., CMSP

Yesterday, the Centers for Medicare & Medicaid Services (CMS) published an update to the NGHP User Guide (Version 7.3), which, among other updates, intends to clarify triggers for Ongoing Responsibility for Medicals (ORM) reporting.

The language from the prior version (Version 7.2, June 5, 2023) and the current version (Version 7.3, August 7, 2023) is provided below:

Old – Chapter III, Section 6.3 – ORM Reporting (Version 7.2, June 5, 2023):

“The trigger for reporting ORM is the assumption of ORM by the RRE, which is when the RRE has made a determination to assume responsibility for ORM and when the beneficiary receives medical treatment related to the injury or illness. Medical payments do not actually have to be paid, nor does a claim need to be submitted, for ORM reporting to be required.” (emphasis added).

New – Chapter III, Section 6.3 – ORM Reporting (Version 7.3, August 7, 2023):

“The trigger for reporting ORM is the determination to assume ORM by the RRE, which is when the RRE learns, through normal due diligence, that the beneficiary has received (or is receiving) medical treatment related to the injury or illness sustained. Required reporting of ORM by the RRE does not necessarily require the RRE to have made payment for Medicare-covered items or services when the RRE assumed ORM, nor does a provider or supplier necessarily have to have submitted a claim for such items or services to the RRE for the RRE to assume ORM.” (emphasis added).

Sanderson Firm Commentary: Yesterday’s update seems to have been prompted by the initial confusion caused by CMS’ June 5, 2023 ORM reporting guidance cited above (please see the prior blog here). The June 5, 2023, guidance seemed to suggest that Responsible Reporting Entities (RREs) were required to report ORM even if 1) the RRE was never placed on notice of the beneficiary’s medical treatment or 2) the beneficiary never filed an insurance claim. Unfortunately, even with this new NGHP User Guide update, the guidance is not fully clear:

• What is the definition of “normal due diligence”?

o Is CMS expecting that RREs perform certain additional actions (e.g., sending treatment-specific questionnaires to the beneficiary), or may RREs simply follow their normal claim protocols when electing ORM?

• Is an RRE still obligated to report ORM if the beneficiary never filed an insurance claim?

o The new language seems to suggest that a beneficiary would need to at least file an insurance claim (otherwise, CMS likely would not have only specified the “provider” and “supplier” in the new language), but it is still not entirely clear.

We are encouraged by CMS’ swift update to the NGHP User Guide, and we hope that CMS’ next update will include a “Note” in Section 6.3 (similar to other sections in the NGHP User Guide) to resolve these questions on this new ORM terminology. In the interim, if your organization has any questions about this NGHP User Guide update or any other Section 111 compliance inquiries, please contact us.