Beware of The Medicare Secondary Payer Act When Paying Workers Comp Claims

Fast changing and complicated laws relating to self-insured employers' responsibilities under the Medicare Secondary Payer Act make it difficult for employers to keep up with the latest changes and regulations. There is one thing that is easy to understand – the Centers for Medicare and Medicaid Services (CMS) are aggressively pursuing recovery of payments they have made from any viable source including self-insured employers.
Employers need to be aware of the risk involved when an injured employee is also a Medicare or Medicaid beneficiary. Any expense paid by CMS for workers compensation-related medical care can be recovered from the self-insured employer, even if the workers compensation claim has been settled and closed. Therefore, if the injured employee is collecting Medicare benefits for non-work-related medical expenses, the self-insured employer should verify that CMS has been paid for any medical cost they have incurred due to work-related medical care.(WCxKit)
In routine workers compensation claims, the employee treats with the medical provider and the medical provider submits the medical bills to the claims office or medical fee schedule reviewer where they are processed and paid. The workers compensation claims where the self-insured employer gets into trouble are long-term claims where the employee is treated by more than one medical provider and often for both a work-related injury and non-work related medical issues. It is almost a certainty that sooner or later the employee gives his/her Medicare or Medicaid card to the workers compensation medical provider, resulting in CMS paying for the medical care.
It is not enough to accept the employee's statement they have not used their Medicare benefits or they have reimbursed Medicare or will reimburse Medicare. All known workers compensation medical bills should be paid directly to the medical provider. When settling the claim with an employee who has Medicare or Medicaid benefits, as a part of your pre-settlement procedure, run a query with CMS. Guidelines on how to submit a query are a part of the CMS Secondary Payer Act guidelines published on the CMS website:
It will not do the self-insured employer any good to include wording in the Compromise and Release, or Release and Settlement Agreement that the claimant will be responsible for the repayment to CMS for any medical expenses they have paid as a result of the workers compensation claim. The agreement is between you and the employee. CMS is not a part of the agreement. They can still enforce their recovery rights and will do so. It is also much easier for CMS to go after the deep pockets of the employer than the employee who has already spent the money that was supposed to cover any medical bills that were not previously paid by the workers compensation insurance.
CMS must be protected or you are not protecting your self-insured workers compensation program from paying the cost twice. Intentional misrepresentation by the employee or an honest mistake on your part will not prevent you from having to reimburse CMS for the medical care for which they have paid. CMS takes the position that it is your responsibility to know the requirements of the Secondary Payer Act and to comply with them. 
While the CMS manual is difficult and takes some time to read, learn, and understand, if you are going to be involved in processing workers compensation, you must read the manual. Become acquainted with the CMS guidelines. Most importantly, this is a very specialized area of workers compensation, so it's best to work with a firm that has expertise in this area. Let's the experts do what they do best – making sure all of the bases are covered.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See for more information. Contact:


Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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