The number of Medicare eligible individuals that elect to enroll in a Medicare Part C/Medicare Advantage plan (as an alternative to traditional Medicare Parts A & B) is rapidly increasing. In 2019, 22.4 million (37% of the 60 million Medicare eligible individuals) enrolled in a Medicare Advantage Plan and that number is expected to jump to 24.4 million in 2020.1 These statistics, combined with the fact that these plans are becoming increasingly aggressive in pursuing recovery rights, means that checking the“other” Medicare box, as part of your settlement checklist is more important than ever.
What is Medicare Part C?
Medicare Part C or Medicare Advantage Plans (MAPs) are authorized under Part C of Title XVIII of the Social Security Act. All Medicare eligible individuals have the option of enrolling in a MAP instead of original Medicare Parts A & B. MAPs contract with the federal government to administer the same benefits as original Medicare Parts A & B and, in some cases, offer additional benefits such as Part D prescription drug benefits.2
Although the scope of MAP recovery rights has long been an area of debate and conflicting opinions, federal and state courts around the country have continued to follow the trend of the 3rd Circuit’s 2012 In re Avandia decision, which equates MAP recovery rights to original Medicare’s. i3. More recent decisions confirm that MAPs may pursue recovery directly from a Medicare beneficiary’s attorney4 and double damages against a primary plan if the MAP is not properly reimbursed for its conditional payments.5 In light of recent jurisprudence in their favor, MAPs are becoming increasingly aggressive in pursuing their federal recovery rights and in some cases, even transferring their recovery rights to third party collection companies to do the same.
Most attorneys and practitioners settling personal injury claims are aware of the importance of addressing traditional Medicare Part A & B reimbursement claims and the process for settling. Although traditional Medicare resolution is still a complex task, the process has become more standardized in recent years. Many additional resources have become available to assist settling parties’ attempts to properly verify a claimant’s Medicare eligibility status and resolve Medicare’s reimbursement claims. For example, with traditional Medicare Parts A & B, an attorney can report a case to Medicare’s recovery contractor, the Benefits Coordination and Recovery Center (BCRC), or through Medicare’s online system, the Medicare Secondary Payer Recovery Portal (MSPRP), to determine a claimant’s Medicare eligibility status, obtain claims information, etc.
With MAPs, identifying and resolving claims is not nearly as clear and presents a completely new set of challenges. First, the BCRC and the MSPRP only provide eligibility and claims information regarding Medicare Parts A & B. They do not provide any information concerning an individual’s MAP eligibility status or information that may help identify the MAP. With MAP Plans, there is no online system or single source through which the attorney can determine whether the same individual may have enrolled in one of the thousands of privately administered MAPs, and if enrolled, for what period of time. If a claimant was Medicare eligible for several years, the claimant may have been enrolled in several different MAPs over that time. When considering reimbursement rights that typically start at date of injury, having multiple Medicare recoveries within the same settlement timeframe can be problematic for attorneys to address.
So, what does all of this mean? Attorneys should be aware that any claimant eligible for Medicare Parts A & B may have also enrolled in a MAP plan, either throughout the entire course of their Medicare eligibility, or at different points in time. Also, the claimant may have received coverage through more than one MAP. At a minimum, attorneys need to determine their clients’ health insurance coverage profile as early as possible. If a client has received Medicare Parts A & B, attorneys need to ask whether the client enrolled in an MAP, and for what periods of time. Below are additional practice tips to help properly identify and resolve MAP reimbursement claims.
1 Trump Administration Drives Down Medicare Advantage and Part D Premiums for Seniors, CMS Newsroom, Sept. 24 2019, https://www.cms.gov/newsroom/press-releases/trump-administration-drives-down-medicare-advantage-and-part-d-premiums-seniors
2 See generally 42 U.S.C. §§ 1395w-22(a), 1395w-23.
3 In re Avandia, 685 F.3d 353 (3d Cir. 2012), cert. denied, 133 S. Ct. 1800 (2013)(holding that the MSP private cause of action provision (42 U.S.C.§1395y(b)(3)(A)) and CMS regulation (42 C.F.R.§422.108) grant MAPs parity with traditional Medicare to recover past medical expenditures on accident related care).
4 See Humana v. Paris Blank, 2016WL2745297 (E.D. Va. May 10, 2016); Humana v. Shrader & Assoc., 2018 WL 1384529 (S.D. TX 2018).
5 See Humana v. Western Heritage, 832 F.3d 1229 (11th Cir. 2016).
MAP Resolution - Best Practices
Determine the client's enrollment status (Medicare Parts A & B and/or Part C/MAP) as early as possible.
It is imperative for plaintiffs’ counsel to have a formalized approach during the case intake process to verify the types of health insurance coverage their clients have received from date of injury through date of settlement. Since an individual must be eligible for traditional Medicare in order to elect coverage through a MAP, begin by using traditional means to determine whether your client is or was entitled to Medicare Parts A and/or Part B coverage. If a client received Medicare benefits, the attorney (or paralegal working the case) should ask about MAP coverage and keep in mind that the clients may assume their MAP is the same as traditional Medicare.
If a client identifies any MAP coverage, it is critical to attempt to gather copies of insurance cards to identify the MAP. Since an individual can switch from MAP to traditional Medicare and vice versa from year to year, successful MAP resolution depends on determining the MAP coverage start and stop dates. Finally, every attorney and team member handling settlement processes must recognize that MAP treatment claims do NOT show up on the conditional payment letters from the BCRC or on the MSPRP, but instead will show up on claims from private insurers who are managing Medicare Parts A & B for that plaintiff.
Find out who is paying for treatment.
Examine the medical bills and statements from payers, providers, and hospitals to determine if an MAP payed for a client’s treatment. If an individual is Medicare entitled and Medicare shows few or no conditional payments, it is likely an MAP was covering treatment. Take note when Medicare Parts A and/ or B payments show up on Medicare’s conditional payment listing in one year but are missing in subsequent years.
Account for administrative differences.
Remember that the BCRC does not handle Part C recovery actions. Resolving MAP reimbursement claims must be conducted directly with the private plan that administered coverage and/or its private recovery contractor. Gathering insurance cards from the clients will help identify the MAP plan. Once you identify that a client had MAP coverage, notify the MAP of the pending claim against a third party or an anticipated settlement to determine whether the insurer paid for any treatments related to the claim on behalf of that client. Remember that it is always better to address these issues as soon as possible to avoid the nightmare scenario of a MAP stepping into your personal injury settlement after funds have already been disbursed.
Utilize traditional Medicare lien resolution and reduction methods.
Since MAPs recovery rights are akin to Medicare Parts A & B, utilize the same methods to negotiate the repayment amount in the same manner you would with traditional Medicare (dispute claims, utilize procurement offset provisions and any other pre-administrative remedy recourse tactics) in the same manner as with Medicare’s recovery contractor.
Taking the above measures as early as possible will allow you to go into settlement discussions with a full picture of the potential Medicare and/or MAP reimbursement claims that may be associated with a plaintiff’s recovery. Identifying any MAPs that paid for treatment and beginning the process of obtaining claims and negotiating with the MAP as soon as you identify the plan will give you the best chance to negotiate a more favorable final repayment amount. Finally, taking these steps allows the client to accept settlement terms knowing Medicare benefits (through traditional Medicare or an MAP) are secure and that an MAP will not show up after settlement monies are paid.
Epiq can consult with you and take the leading role in helping you verify and resolve MAP recovery claims. For more information or to speak with our subject matter experts, call us at (704) 559-4300.