"Viewpoint: Third Parties Create a Medicare Headache for Insurers and Employers"

Claims Journal

Jeff Stinson authored an article published by Claims Journal on July 26, 2022 detailing an emerging risk of private actors seeking to enforce compliance with the Medicare Secondary Payer (MSP) Act – even more so than the federal government.

“The MSP Act provides, in part, that employers and insurers in workers’ compensation claims cannot pass along claim-related medical costs to Medicare,” Stinson explained. “Typically, conditional payment information is requested directly from CMS, usually in the process of obtaining an MSA and getting it approved.” However, because the CMS only provides data and seeks recovery for Medicare Parts A and B, it does not have information or data on payments made by private health insurance plans, like Medicare Advantage Plans, that offer an insurance insurance-like alternative to traditional Medicare Plans and are known as Medicare Part C. Another part, Medicare Part D, provides prescription coverage.

The MSP provides a private cause of action when a primary payer (e.g. workers’ comp employer or insurer) fails to reimburse Medicare for conditional payments, and if successful, the recovery is double the amount due. This private cause of action has been extended to the private Part C and D Medicare plans, and private entities have begun filing lawsuits against insurers on behalf of Part C and D plans to recover double damages.

With 28 million enrollees on Part C and D plans, this trend has the potential to become a $21 million problem for employers and insurers, Stinson explains.

While Congress is contemplating legislation that could eventually address the issue, Stinson offered some guidance for employers and carriers to mitigate this risk in the meantime. “They should seek to identify if the injured worker is a Part C or D beneficiary, and if so, make sure that conditional payment information is requested from those carriers,” he said. “If there are Part C or D conditional payments, they should be paid for as part of any settlement or otherwise addressed in the settlement of a claim.”

For the full article, please click here.


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