Medicare Advantage Plan and Prescription Drug Plan Information will be Disclosed to Section 111 NGHP RREs Beginning in December 2021

On 12/11/2020, President Trump signed into law H.R. 8900, which made headlines as a one-week continuing resolution (CR), to prevent a government shutdown. However, tucked away within H.R. 8900, the “Further Continuing Appropriations Act, 2021, and Other Extensions Act[1]”, was Title III – Offsets, creating long-sought after transparency in Medicare Secondary Payer (MSP) information. This has long been lobbied for by Non-Group Health Plan (NGHP) Responsible Reporting Entities (RREs) including: workers’ compensation plans and insurers; liability insurers; no fault insurers; and organizations that are self-insured in these areas as well as the Medicare Secondary Payer (MSP) compliance industry, most notably, the Medicare Advocacy Recovery Coalition (MARC).  

The new law improves upon a problem that has been a sore spot in MSP compliance, by providing NGHP RREs with information to identify any applicable private insurer sponsored Medicare Advantage (MAP, also known as Part C) or Prescription Drug (Part D) plans, which may have provided benefits to injured Medicare beneficiaries who also have workers’ compensation or other personal injury claims.

On or after 12/11/2021, for any beneficiary that is queried through the Section 111 Mandatory Insurer Reporting process, RREs will receive Medicare Advantage and Prescription Drug plan information, identifying any plan in which the beneficiary/claimant has been enrolled over the preceding three-year period.

With the identification of these private insurance companies, NGHP RREs will be equipped to notify the Medicare Advantage and Prescription Drug plans of the presence of a primary payment source, being either (1) the RRE themselves, by way of an open medical claim or (2) a settlement, judgement, or other award that released or had the effect of releasing a medical claim. In turn, this will allow Part C/D plans the opportunity to be reimbursed for any medical claims paid where they may have unknowingly been the secondary payer.   

This data will be invaluable to RREs who to date have had no government-sponsored platform, program, or process in place to reliably gather Part C/D plan information. The impact of this gap in information sharing has been obvious in the courts.

Litigation related to Medicare Advantage Organization (MAO) conditional payments has been active for several years and recently, as you may recall from our blog (Eleventh Circuit Extends the Scope: Who Else is Entitled to Double Damages Under the MSA?), extended the scope of parties with standing to bring a private cause of action under the Medicare Secondary Payer Act[2]. In MSP Recovery Claims, Series LLC v. Ace American Insurance Company, et. al.[3] the plaintiff alleged that primary payers failed to reimburse conditional payments made by Medicare Advantage Plans and downstream actors/entities who paid for injury-related medical expenses. The court held that downstream actors may bring a private cause of action under the Medicare Secondary Payer Act [2] and may therefore be entitled to double damages.

With certain downstream actors collecting MAO debts in the interest of bringing action and recovering double damages, now more than ever RREs must be proactive in identifying and notifying MAOs of primary payment sources. Currently, the only option for collecting this information is from the injured party directly. It is dependent upon their willingness to disclose the information, as well as the accuracy of their personal record keeping, especially when considering enrollment in past plans.

Over the course of the next year, RREs must stay the course and continue to persist in their attempts to collect this information. But now there is a light at the end of the tunnel, in that by this time next year the same information will be readily available to them through their Section 111 query process.

[1] Public Law No: 116-215

[2] 42 U.S.C. § 1395y(b)(3)(A)

[3] Msp Recovery Claims v. Ace Am. Ins. Co, Nos. 18-12139, 18-12149, 18-13049, 18-13312, 2020 U.S. App. LEXIS 28610 (11th Cir. Sep. 4, 2020)