In 1984, Ivy League trained parapsychologists Venkman, Stantz, and Spengler started a ghost-catching business in New York City, despite implausible research, and eventually were welcomed as heroes by saving the city from the paranormal disguised as giant marshmallow man Stay Puft. Only in the movies! But, we can use this ghoulish time of the year to serve as a reminder: Don’t let MSP enforcement claims by Medicare Part C Advantage Plans sneak up to shock and detract your standard claims operating procedures. Identifying and resolving these repayment claims may be just as important a part to your overall MSP compliance strategy as similar claims by traditional Medicare Parts A and B.
Medicare Advantage Plans (MAP) continue to spike a sizeable and spreading alternative delivery mechanism containing unique benefit offerings within the Medicare health plan universe in over 3,100 Plans available for 2020—an increase of just over 13% compared to 2019—which are administered by private companies who compete regionally for Medicare beneficiaries—22 million are currently enrolled under MAP. Medicare Advantage 2020 Spotlight: First Look
MAPs are responsible to CMS for compliance with MSP enforcement and failure to do so could result in, for example, revenue losses and contractual breach. These MAP responsibilities include adhering to MSP published laws, CFR rules and regulations, identifying Primary Payers, discovering secondary payments, and coordinating benefits with Primary Payers insofar as denying coverage claims and pursuing reimbursement.
Notwithstanding, MAP repayment efforts were not treated as equal to CMS by the courts historically, with recovery efforts, like contractual-based subrogation actions in state courts, proving to be an expensive and time-consuming function yielding inconsistent and sometimes altogether unsuccessful returns in certain jurisdictions which took away from MAP’s primary goal of providing and developing health care. Still, the sheer number of MAPs and their enrollees alone would garner regular attention in a non-group health plan’s claims resolution process. But, several significant court decisions, concentrated over the past 7 years, have given Primary Payers even more reason to pay serious attention to MAP claims. MAPs (and their assignees), beneficiaries, and medical providers have been empowered to rely on MSP private cause of action under 42 U.S.C. §1395y(b)(3). Target defendants include Primary Payers, Plaintiff’s attorneys, and health care providers. Not addressing MAP repayment claims could result in additional exposure against Primary Payers including double damages if legal action to recover is necessary irrespective of whether the Primary Plan made primary payment to the beneficiary or any entity other than Medicare. 42 C.F.R. 411.24(c)(1-2), (i)(1-3).
In light of this favorable trend, MAPs have become more strategic in recovery processes demonstrating MSP compliance with greater visibility to litigants, claimants and non-group health plans for purposes of anticipating recovery opportunities and negotiating repayment. Enforcement challenges still exist regarding MAPs. For example, CMS guidance on expected procedures and results, coordination of benefits, not making the payment in the first place, data sharing (timeliness, accuracy, and reliability), and cooperation with recovery activity.
Also, the PAID Act (H.R. 5881) remains a proposed legislative remedy which would provide upon query the disclosure of an individual’s 3-year enrollment history on MAP and Part D prescription Plans respectively. PAID Act is meant to assist attorneys and Primary Payers with discovering MAP information to result in a more efficient MAP recovery enforcement process.
In turn, Primary Payers can no longer ignore or subordinate MAP communications, must be better at training or partnering to identify who is paying the claimant’s bills, and addressing repayment as a material term of settlement and directly reimbursing MAPs.
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