By Nathaniel F. Wienecke | August 6, 2019
It’s a scenario every senior citizen fears—getting seriously injured in an accident. Whether it’s a slip and fall at the grocery store or getting hit by a car crossing the street, the question of “who pays?” often isn’t far from anyone’s mind. Luckily for most Medicare beneficiaries, there is a process in place to make sure they receive the care they need in a timely matter.
Still, Medicare is not necessarily responsible for paying for care in cases where another party is liable for a beneficiary’s healthcare expenses resulting from an accident. The Medicare Secondary Payer (MSP) system, as it is called, was created by Congress in 1980 to allow Medicare to pay for health care costs and then get repaid after the beneficiary received a settlement, judgement, or other award where medical expenses are involved for the same injury.
In an article for CLM Magazine, MARC Coalition's Heather Sanderson urges primary plans to consider best practices as courts rule in favor of Medicare Advantage Plans (MAP) recovering double damages. Sanderson astutely notes that with both the 3rd and 11th Circuit Courts finding in favor of MAPs being allowed to bring an Medicare Secondary Payer (MSP) private cause of action for double damages, industry is seeing "widespread" application of the double damages across the country. "The ease with which courts have determined a MAP can allege a sufficient double-damages MSP private cause of action claim is alarming," writes Sanderson. "A recent district court case out of Illinois found that, for a MAP to allege an MSP private cause of action, it simply needs to allege that there is no genuine issue of material fact regarding the defendant’s status as a primary plan, the defendant’s failure to provide for primary payment or appropriate reimbursement, and the damages amount."
In health policy, the minutia is not trivial; it’s essential. Small incentives created by policymakers can have a significant impact upon how Medicare beneficiaries, doctors, hospitals and insurers respond to health care claims. But sometimes policies — even the most well-intentioned — can have unintended consequences, leading to wasted resources, burdensome regulations and broken promises to the very people that the system is designed to serve.
MARC's Heather Sanderson and David Farber penned an article in CLM Magazine outlining issues within Medicaid Third Party Liability (TPL) programs that can be solved by implementing the Provide Accurate Information Directly (PAID) Act. "The good news is that congress has the opportunity to get Medicaid TPL right. First, Congress should focus the data and follow the money by working to streamline TPL recoveries from Medicare and group health policies. Second, Congress should enact the PAID Act -- recently introduced legislation that would require CMS to respond to a 'Section 111 query' with enrollment information about the beneficiary's Medicare Advantage, Part D, and Medicaid status."
MEDVAL reports on the introduction of the PAID Act and its potential to improve Medicare Secondary Payer program. "H.R. 5881 proposes that CMS share information regarding enrollment in MAP, Part D, and Medicaid to assist with the timely discovery of conditional payments and liens. As we have seen and written about here on our blog, we are consistently seeing MSP litigation and aggressive recovery efforts throughout the country. The timely sharing of information and ultimate identification of a beneficiary’s enrollment in supplemental plans would certainly decrease the amount of litigious MSP recovery efforts, as well as the concerns of double damages."
Today, Medicare Advocacy Recovery Coalition (MARC) Chairman Greg McKenna submitted a comment letter to CMS Administrator Seema Verma in response to the proposed rule entitled "Medicare Program; Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-for-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program." In the letter, Chairman McKenna applauded CMS' initiatives to address the nation's opioid epidemic, and stressed that CMS must to ensure that frequently abused drugs are appropriately managed so that Medicare beneficiaries at risk of abuse and addiction cannot access them through the Part D program. "We write today to urge CMS in both its final rule and in the final rule preamble to address how frequently abused drugs could be accessed through Workers Compensation Medicare Set Aside arrangements (MSAs)," wrote Chairman McKenna.
Among the many efforts to streamline and improve Medicaid, there has not been considerable focus over the past five years to improve the states’ Medicaid “third party liability” programs. Fortunately, Congress has the chance to correct that now by enacting the Medicaid TPL provisions of the Healthy Kids Act (H.R. 3921) that was recently approved by the House Energy & Commerce Committee.
It is hard to imagine that in 2003, when Congress enacted the Medicare Modernization Act (MMA) and created the Medicare Prescription Drug Program (the “Part D” program), nobody really knew whether beneficiaries would actually sign up. Nor did Congress know whether, or how, the law would actually work.
The CMS administrator at the time, Tom Scully, famously noted that a prescription drug program “does not exist in nature.” In fact, at the time no model existed for a federally subsidized private insurance program, and there was nothing the Congress could use as a template. At best, Congress looked to the Medicare Advantage program as a guide for several of the operational aspects of the new Part D program. But even that was a poor analog.
MARC COALITION APPLAUDS REPS. MURPHY, KIND ON BIPARTISAN BILL TO IMPROVE MEDICARE SECONDARY PAYER POLICY
The Medicare Advocacy Recovery Coalition (MARC) today lauded Rep. Tim Murphy (R-PA) and Ron Kind (D-WI) for their introduction of the Secondary Payer Advancement, Rationalization, and Clarification (SPARC) Act (H.R. 1122) – a bipartisan measure to improve the Medicare Secondary Payer (MSP) program in Medicare Part D. While the MSP policy is designed to ensure that the Medicare program and prescription drug plans (PDPs) do not reimburse healthcare expenses for which another entity is legally responsible, literally every stakeholder agrees that the process by which PDPs recapture payment for claims that were not its responsibility to pay is broken. The SPARC Act will significantly improve the efficiency of the current system, providing a clear framework for communication among all stakeholders involved.
Medicare Advantage Plans (MAPs), also known as Medicare “Part C,” are private insurance plans that provide a Medicare beneficiary’s “Part A” and “Part B” benefits. A Medicare beneficiary can choose to enroll in a MAP rather than traditional Medicare. Part D plans provide benefits for a Medicare beneficiary’s prescription drugs. It is important to note that traditional Medicare generally does not provide prescription coverage directly; a beneficiary must enroll in a Part D plan to receive Part D benefits.