Let's Talk Medicare Secondary Payer Hot Topics!

There is a lot to talk about these days regarding Medicare Secondary Payer!


On December 8, 2020, The House passed the Bill H.R. 1375, PAID Act. In response to non-group health plans (workers compensation, general and auto liability, self -insured entities), this bill requires the Centers for Medicare & Medicaid Services (CMS) to provide information regarding whether an individual is currently or was enrolled in traditional Medicare, a Part C Medicare Advantage Plan, or Part D Medicare prescription drug benefit during the preceding three-year period. Read our previous Blog here!

Care Bridge International, having electronic access to eligibility details, has been providing this eligibility information to our clients for the past 3 years! Expect your MSP Service Provider to offer this service in 2022.

CMS releases new Non-Group Health Plan (NGHP) Section 111 Medicare Reporting User Guide (Version 6.2) January 11, 2021

For those responsible for Mandatory reporting to CMS under Section 111, the following outlines current updates:

As of January 1, 2021, the reporting threshold for physical trauma related liability insurance settlements will remain unchanged at $750. The threshold for no-fault insurance and workers’ compensation settlements, where the entity does not have ongoing responsibly for medicals (ORM), will also remain unchanged at $750. (Sections 6.4.2, 6.4.3, and 6.4.4).

Responsible Reporting Entities (RREs) can now enter (Field 79) a future Ongoing Responsibility for Medicals (ORM) Termination Date up to 75 years from the current date (Section 6.7.1).

A Policy Number (Field 54) has been added as a key field. If the policy number changes, RREs must submit a delete Claim Input File record with the exact match of the old record, followed by a new add record with the current/ updated changed information (i.e., delete/add process) (Sections 6.1.2, 6.6.1, 6.6.2, and 6.6.4).

Presently, there are four ways to report claims to CMS and changes are underway to move certain electronic file transfer data exchanges to the CMS Enterprise File Transfer protocol. The final transfer is targeted for April 2021. As part of this change the direct exchange of data with the Coordination of Benefits and Recovery (COB&R) program via Connect: Direct to GHINY SNODE will be discontinued. Since Care Bridge International does not use the Connect option, this change will have no impact to our Section 111 Reporting clients.

Recent Eleventh Circuit Decisions.

In the aftermath of two Eleventh Circuit decisions, MSP Recovery Claims, Series LLC v. Ace American Insurance Co., No. 18-12139 (11th Cir. 2020) and MSPA Claims v. Kingsway Amigo, No. 18-14980 (11th Cir. 2020), primary payers cannot assume they are protected from a private cause of action under the Medicare Secondary Payer Act.

If a conditional payment has been made that should have been paid by a primary payer, Medicare Advantage Plans, Medicaid, Medicare Part D prescription drug providers and other downstream payers have the same right as Medicare to seek reimbursement and sue for double damages and file private causes of action. Today, companies are squeezed for cash and you can expect these companies to pursue every legal and financial opportunity to protect the bottom line.

Medicare Secondary Payer: What Can We Expect Under a Biden Administration?

Under the Trump administration, 244 Medicare regulatory changes were made impacting clinicians, hospitals, and other healthcare providers during the COVID-19 pandemic, according to the Commonwealth Fund. It will take the administration some time to review these changes and determine which changes align with the new administration's philosophy to maintain and uphold the Affordable Care Act and possibly move towards a Medicare-for-all public option.

Medicaid Expansion may occur through a rescission or reversal of Waiver 1115 policy, including work requirements or other restrictive provisions or additional waivers that extend to targeted populations. In addition, under the Families First Coronavirus Response Act, the COVID 19 public health emergency (PHE) temporarily increased access to Medicaid through January 20. On January 8, 2021, the U.S. Department of Health and Human Services (HHS) announced the PHE would be extended an additional 90 days through April 20, 2021. Renewals were issued just two weeks before the expiration date, so stay tuned! Expansion of Medicaid also expands Medicaid recovery. Where a primary payer exists, this will have a direct impact on some COVID related claims at the time of settlement, for Workers Compensation states that enacted COVID presumption regulations and other bodily injury claims.

Prescription Drug Pricing Transparency: The Biden Administration may increase support for drug price transparency regulation on the Federal level. Likely impacting the pharmacy benefit managers (PBMs) more than the drug companies. Changes in prescription drug pricing, including the Average Wholesale Price will fluctuate, impacting the overall medical spend for claims with prescription drugs.

Buy Drugs Made in America! We have already seen through Executive Order, that the Biden Administration is encouraging the federal government to buy products manufactured in the United States. We can expect this to extend to pharmaceuticals and federal government agencies which are not permitted to waive Buy America Act/Trade Agreements Act requirements. How drugs made in America will differ in price from drugs currently imported from foreign countries is not clear, but drug pricing has a direct impact on overall medical costs for claims. We will continue to monitor prescription drug costs and keep you apprised.

Medicare Part D and Reimbursement Reform: There exists bipartisan interest in amending the Part D benefit model to eliminate the “donut hole” coverage gap. The Biden Administration may relax the non-interference clause of the Medicare Modernization Act to allow direct pricing negotiation for Medicare Part D drugs. Such a change may have the effect of greater Medicare Secondary Payer recovery for Medicare covered prescription medications.

Count on us to continue to offer you the latest news and information regarding Medicare Secondary Payer Compliance.

Care Bridge International calculates medical exposure for bodily injury claim reserves, medical damages for claim settlements and offers the full scope of Medicare Secondary payer services, simply and rapidly, with human compassion and machine learning technology, delivering unprecedented claim outcomes. Our Medicare Set Asides are approved by Medicare at less than half the industry average!

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