On the eve of its much-anticipated mandatory MSA reporting webinar, the Centers for Medicare & Medicaid Services (CMS) dropped a series of updated policy guides, most notably a new NGHP Section 111 User Guide. This new guide provides several key updates as follows:

1. Mandatory MSA reporting with multiple dates of loss and/or claims payers. 

CMS issued updated policy to say:

“Medicare Set-Asides – As it relates to multiple dates of incident, an MSA, if applicable, shall be reported under the earliest date of incident, if only one TPOC is made. If multiple TPOCs are submitted, but only one MSA is reported, the MSA shall be reported on the first TPOC only. Where there are multiple defendants (RREs) reporting each RRE must report the total MSA Amount—not just its assigned or proportionate share. System logic exists such that only the first reported MSA amount will be applied for purposes of coordination of benefits.”

So, what’s new? CMS’ policy more clearly indicates that it wants the MSA attributed on the first possible TPOC date when multiple dates of loss are settled all at once. CMS has also updated the guidance to request that RREs report the full MSA amount when there are multiple RREs involved in one settlement with a workers’ compensation settlement. For example, where four RREs are contributing to one workers’ compensation asbestos claim, all four RREs would be expected to report the full MSA amount, even if that RRE paid only a nominal amount towards the claim and in fact did not contribute to the MSA. 
Fathomably, this new guidance could create situations where the MSA amounts exceed the amount of the RRE’s reported TPOC. Not to mention, it is unclear what would happen if one RRE reports one amount and another RRE reports no MSA or a lower amount.

2. Updated guidance on wrongful death claims. 

CMS also revamped a section regarding wrongful death claims as excluded from recovery as follows:

“Note: In order for the wrongful death theory of liability to preclude Medicare from recovering from a settlement, judgment, award, or other payment, complete documentation must be provided that shows what was claimed and released or had the effect of being released. Additionally, a citation to the appropriate state statute or case law that precludes recovery from a wrongful death settlement should be included with any such dispute or appeal.”

Prior guidance from CMS stated: “Settlements, judgments, awards, or other payments 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.”

This updated guidance overlooks the reporting requirement, instead focusing on recovery and the documentation that a party needs to retain to demonstrate that Medicare is not permitted to recover. If you are wondering what happened to the policy that settlements “entirely under the wrongful death theory of liability do not have to be reported” – it is not gone. CMS retained the plainly stated language above: “The critical variable to consider is whether a settlement releases or has the effect of releasing medicals. If it does, regardless of the allocation (or lack thereof), the settlement must be reported.” So, if your wrongful death settlement doesn’t release the decedent’s medical claim (perhaps because that claim died with he individual under your state law), you do not have to report the claim.

3. Clarifications regarding state commissions

In a number of places, CMS updated its guidance to insert the phrase “or commission approval” in reference to the TPOC date. This clarification is odd because the language around TPOC date selection has been largely unchanged. However, it is helpful to be aware that even if it is not by a “court,” a commission that must approve a settlement by state law is still a key determining factor in deciding a TPOC date. CMS issued the following example:

“Example: The parties to a workers’ compensation case execute an agreement regarding the claim on 01/20/2026. The state requires the workers’ compensation commission to approve the final settlement details and said approval occurs on 02/05/2026. The TPOC date in this situation would be 02/05/2026 because it is the later of the date the agreement was fully executed and the date the court or commission approved the agreement.”

Here, CMS’ policy is explicitly aligned with practice on the ground, as under the prior guidance, most experienced practitioners would report 2/5/2026 as the TPOC date. 

4. Updated ORM Termination Guidance

CMS liberalized ORM termination guidance, as follows: 

“Where the insurer’s responsibility for ORM has been terminated per the terms of the pertinent insurance contract, such as maximum coverage benefits, or any other reason that is not prohibited by the terms of the insurance contract or applicable state or federal law. 

“Note: An insurer’s refusal to accept ORM, or to continue to accept ORM, is a valid ORM termination reason, provided that the refusal is permitted by applicable state or federal law and the terms of the insurance contract.”

This section will require additional examination, but it appears that CMS is adopting more of a good faith standard for ORM termination especially in workers compensation.  This is certainly welcome news for an industry that has long complained about CMS’ strict ORM termination guidelines.

As these are just a few of the most important changes, we are awaiting further information and clarification from CMS with its Town Hall call tomorrow. In the meantime, please do not hesitate to reach out to Marty Cassavoy or the ECS Compliance Team directly at 781-517-8085 mspcompliance@examworkscompliance.com.