CMS’ October NGHP User Guide Update Clarifies Wrongful Death Claim Reporting
Written by: Brendon De Souza, Esq., MSPA
On October 7, 2024, the Centers for Medicare & Medicaid Services (“CMS”) published Version 7.7 of the Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers’ Compensation User Guide (“NGHP User Guide”), which now clarifies that settlements, judgements, awards, or other payments obtained pursuant to a wrongful death claim are not required to be reported to Medicare under Section 111 reporting requirements if medical expenses were not claimed and released (or do not have the effect of releasing medical expenses):
Note: Settlements, judgments, awards, or other payments obtained entirely under the wrongful death theory of liability, which do not claim and release medicals, or have the effect of releasing medicals, are not required to be reported because Medicare would have no recovery claim against such a payment – NGHP User Guide, Version 7.7., Section 6.5.1.4
Wrongful death settlements involving Medicare beneficiaries have generally caused confusion for Responsible Reporting Entities (“RREs”) attempting to comply with Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (“Section 111”) because wrongful death damages and recovery vary by jurisdiction.
Some jurisdictions permit the decedent’s estate to claim and recover medical expenses incurred before the decedent’s death (e.g., Georgia wrongful death statute), while other jurisdictions do not (e.g., California wrongful death statute). CMS’ NGHP User Guide update simply confirms that RREs may elect not to report wrongful death claims via Section 111 where the decedent was a Medicare beneficiary and either a) the applicable wrongful death state statute does not permit recovery for medical expenses, or b) even in cases where the applicable wrongful death state statute does permit recovery for medical expenses, the estate does not claim and release medical expenses (or the settlement, judgement, award, or other payment does not have the effect of releasing medical expenses).
Ultimately, if medical expenses are not claimed and released, Medicare does not have a conditional payment recovery interest in the claim. Accordingly, even if such settlements, judgements, awards, or other payments are reported by the RRE, both traditional Medicare (Medicare Parts A & B) and private Medicare (Medicare Part C and Medicare Part D) will be designated as the primary payer(s) and lien amounts will be waived.
*Note – CMS’ NGHP User Guide clarification applies to settlements, judgements, awards, or other payments obtained entirely under wrongful death. If other theories of liability are also alleged (e.g., survivorship action), reporting may be required and Medicare may be entitled to conditional payment recovery.
If you have any questions regarding CMS’ NGHP User Guide update, would like to schedule a demo for SandersonComply, or have any other Section 111 reporting-related inquiries, please contact us.
