By Daniel Anders, Esq., MSCC, CMSP, Chief Compliance Officer, Tower MSA Partners
Whether they realize it or not, workers’ compensation, no fault, and liability payers can now access data about a Medicare beneficiary claimants’ enrollment in Part C Medicare Advantage and Part D Prescription Drug Plans. The Provide Accurate Information Directly (PAID) Act, effective December 11, 2021, makes this possible through the Section 111 Mandatory Insurer Reporting process.
Previously, payers could only see that a person was enrolled in Medicare. They couldn’t tell if they were also enrolled in a Medicare Advantage or Part D plan.
Under the Medicare Secondary Payer (MSP) Act, payers need to reimburse traditional Medicare, Medicare Advantage and Part D plans for treatment that they—as the primary payer—should have covered. The Centers for Medicare and Medicaid Services (CMS) has consistently asserted that Medicare Advantage and Part D plans have the same or similar rights of recovery under the Medicare Secondary Payer (MSP) Act as CMS itself. Federal courts have largely agreed with CMS’s position, notably finding Medicare Advantage plans can seek post-settlement reimbursement against applicable plans, including double damages.
Yet, trying to reimburse a plan when its name, or even its type, is unknown was challenging at best. Before the PAID Act payers had to go to an injured worker or their attorney for this information. Naturally, this delayed claim settlements and some injured workers declined to respond, and others gave incomplete or inaccurate information. Additionally, because Medicare beneficiaries can change plans every year, multiple plans could seek reimbursement rights during the life of a workers’ comp claim.
Part C and D Plans
Part C Medicare Advantage plans (MA plans) are alternative delivery mechanisms for traditional Medicare benefits (Parts A and B). As of 2021, 46% of Medicare beneficiaries were enrolled in MA plans.
Private companies contract with CMS to provide MA plans. The three largest, which represent almost half of the available plans, are UnitedHealthcare, Humana, and Aetna. Medicare beneficiaries can change plans during annual or special enrollment periods.
Medicare Part D is a voluntary prescription drug benefit for people with Medicare, provided through private plans approved by the federal government. Beneficiaries can enroll in either a stand-alone prescription drug plan (PDP) to supplement Original Medicare or a MA plan prescription drug plan. At least 75% of traditional Medicare members also have Part D.
PAID Act Provides Enrollment Information
The PAID Act required CMS to provide access to the past three years of a claimant/Medicare beneficiary’s Part C and D enrollment information by December 11, 2021. This information includes not only the plan name, but also the contract number, enrollment date, termination date, benefit package number, and plan address.
CMS added 244 new data fields to the Section 111 Reporting query process. Parts A, B, C, and D have the most recent effective dates and termination dates. Parts C and D also have the most recent and previous plan(s) data, up to three years of data.
If you are a payer, you should have access to this information. It is either directly entered into the claims system or available via a report from your Section 111 reporting agent or third-party administrator.
Payers should use the contact information from the Section 111 data to initiate a query with the plan(s) to determine if they have a reimbursement claim before a settlement. Sometimes, a Part C or D plan will issue a claim for reimbursement without initiating an inquiry.
Based on the MSP statute and regulations and court decisions, Part C and D plans have a right of recovery against the primary plan and all those who receive payment from that primary plan, such as the injured worker and their attorney. However, there are differences in recovery processes for Parts A and B and those for Parts C and D.
- Part C and D plans cannot access the Medicare Secondary Payer Recovery Portal (MSPRP)
- Debt collection for Parts C and D is not split into two recovery contractors (Commercial Repayment Center (CRC) and Benefits Coordination and Recovery Center (BCRC) as it is for Original Medicare. However, Part C and D plans either contract out their recovery or do a combination of in-house and contracted recovery services.
- The C and D plans cannot refer debts to the U.S. Treasury Department; they must file suit instead.
- Notably, Part C and D plans have significantly fewer unrelated charges on their claims for reimbursement compared to Parts A and B, thus making them easier to resolve.
Guidance for Addressing Part C and D Reimbursement
Here are steps to properly resolve Part C and D reimbursement claims at the time of settlement:
- Identify if the injured worker is a Medicare beneficiary and is enrolled in a Part C or D plan
- Find out if the individual was ever enrolled in traditional Medicare, if so investigate conditional payments with CRC and BCRC
- Investigate whether the Part C or D plan is seeking reimbursement and obtain a letter itemizing reimbursement claims
- Negotiate with Part C or D plan to remove charges unrelated to work injury and when there is a reasonable basis to dispute. These plans largely use the same dispute and appeal criteria as CRC/BCRC
- Contact the plan at time of settlement to confirm final amount owed
- Resolve the case with a clear understanding of how the plan will be reimbursed
Keep in mind that the PAID Act in no way changes Part C and D reimbursement rights nor adds any new obligations to these plans. Nonetheless, payer access to plan information will undoubtedly lead to a greater emphasis on contact with the plan prior to settlement. Payers should make use of this data to query the plan and identify and resolve reimbursement claims at the time of settlement.
About Dan Anders
Daniel M. Anders, Esq., MSCC, CMSP, is an expert in Medicare Secondary Payer (MSP) compliance and Medicare Set-Aside (MSA) preparation. As Chief Compliance Officer for Tower MSA Partners, Anders oversees all aspects of regulatory compliance associated with the MSP status and local, state, and federal laws. His responsibilities include ensuring the integrity and quality of Tower’s services and products, including its MSA program.
With 20 years of experience working with employers, insurers, third-party administrators, attorneys and claimants, Anders provides education and consultation to Tower’s clients on all aspects of MSP compliance. He presents at webinars and industry conferences, including WCI and the National Workers’ Compensation & Disability Conference & Expo. A respected subject matter expert, Anders writes articles, is frequently interviewed for insurance and workers’ compensation publications, and regularly contributes to Tower’s MSP Compliance Blog.
An attorney and certified Medicare Set-Aside Consultant, Anders joined Tower in 2016. He previously served as Senior Vice President of MSP Compliance for ExamWorks Clinical Solutions and has extensive litigation experience from his earlier position with the Chicago law firm of Wiedner & McAuliffe.
Anders is a member of the Illinois State Bar Association and the immediate past president of the National Medicare Secondary Payer Network (MSPN), formerly the National Alliance of Medicare Set-Aside Professionals (NAMSAP). He has been involved in the organization for years, having served on MSPN’s executive committee for several years and co-chairing its Policy & Legislative Committee.
Anders earned his Juris Doctor degree from Chicago-Kent College of Law and his bachelor’s degree from Loyola University Chicago. He lives in the Chicago area.
Tower MSA Partners provides Medicare Secondary Payer (MSP) and Medicare Set-Aside (MSA) services with settlements in mind. Services include MSAs, pre-MSA Triage, Physician Follow-up, Physician Peer Reviews, Clinical Oversight, MSA 2nd Opinions, Conditional Payment Resolution, Section 111 Reporting, Legacy Claim Settlement Initiatives, and Liability Settlement Solutions. The company, which provides services nationally, also prepares medical cost projections and life care plans. Wholly owned by its CEO Rita Wilson and COO Kristine Dudley, Tower is a certified Women’s Business Enterprise (WBENC) and it has successfully completed a SOC 2 Type II audit. For more information, call 888-331-4941 or visit www.towermsa.com or https://towermsa.com/blog/.