On May 18, 2018, Congressman Gus Bilirakis (R-FL) and Congressman Ron Kind (D-WI) introduced HR 5881, amending the Medicare Secondary Payer (MSP) statute and clarifying its application to Medicare Part C Advantage Plans (MAP), Medicare Part D Prescription Drug Plans (PDP), and Medicaid. The Provide Accurate Information Directly (PAID) Act, provides employers, carriers, corporate defendants, insurers, third party administrators, and beneficiaries who are parties to third-party settlements — such as in an auto, liability, no-fault, or workers compensation claim, with the identity of a MAP, PDP, or Medicaid plan that may have paid for medical bills related to the auto, liability, no-fault, or work comp claim, other than Medicare.
Bill Filed by Representatives Bilirakis and Kind
Bilirakis, a pro-business, insurance company friendly Republican said it best. “The inability to obtain basic information about MSP liabilities hinders participants' ability to retain access to quickly resolve liability settlements. This legislation will ensure that beneficiaries, Medicare, and Medicaid have a clear and quick way to identify whether or not a participant has an MSP obligation, and provide information about how that obligation can be resolved.”
Kind, a pro-worker, Medicare and Medicaid friendly Democrat agreed. “Congress can drive a better coordination of benefits if it mandates the sharing of certain information between CMS and settling parties. If settling parties are simply provided with basic plan information, they will be able to quickly repay liabilities associated with settlements, judgments, or awards.”
This is not the first time Congressmen Bilirakis and Kind have worked together on MSP issues. They have had their hits and misses too. Their MSP work together goes back to 2012, when they co-sponsored the Strengthening Medicare and Repaying Taxpayer (SMART) Act, the law responsible for providing a 3 year statute of limitations on government's right to seek reimbursement of conditional payments, but also responsible for CMS' Commercial Recovery Center's involvement and aggressive pursuit of reimbursement of conditional payments from primary payers which have accepted ongoing responsibility for medical care associated with an auto, liability, no-fault, or work comp claim beginning October 2015.
Bill Provides Identity of Advantage, Prescription, Medicaid Plan
Persuaded by the Medicare Advocacy Recovery Coalition (MARC), a lobbying organization made up of some of the US largest employers, carriers, corporations, insurers, third party administrators, and organizations supporting their interests including Allstate Insurance, American Family Insurance, Burns White, CenturyLink, DRI, ExamWorks Clinical Solutions, Farmers Insurance, Franco Signor, Gallagher Bassett Services, Liberty Mutual Insurance, Lowe's, Marriott International, MetLifeAuto and Home, NASCO, Nationwide Insurance, PCIAA, Progressive Insurance, Sedgwick Claims Management, UPS, Walmart, Walt Disney World Resort, and Wegmans Food Market, Bilirakis and Kind filed the PAID Act to create a MSP system that will help beneficiaries, the Medicare program, and corporate entities resolve claims by identifying MAPs, PDPs, and Medicaid agencies that may be due reimbursement of conditional payments.
Currently, other than learning from the beneficiary the identity of a MAP, PDP, or state Medicaid agency that may have paid for medical bills related to the auto, liability, no-fault, or work comp claim, there is no method for an employer, carrier, corporate defendant, insurer, or third party administrator to learn the identity of same. The result is that settling parties have no way to find out which MAP, PDP, or Medicaid program the beneficiary is in, and therefore, cannot coordinate benefits or make plans to repay what is owed.
Introduced in the 115th Congress, 2nd Session, HR 5881 was filed to amend title XVIII of the Social Security Act to provide for transparency of Medicare secondary payer reporting information. On May 18, 2018, Rep. Bilirakis (for himself, Rep. Ross, and Rep. Kind) introduced the bill, which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. The following is a verbatim rendition of the proposed bill:
Section 1. Short Title.
This Act may be cited as the “Provide Accurate Information Directly Act” or “PAID Act”.
Section 2. Transparency of Medicare Secondary Payer Reporting Information.
Section 1862(b)(8)(G) of the Social Security Act (42 USC 395y(b)(8)(G)) is amended—
(1) by striking “INFORMATION.—The Secretary” and inserting “INFORMATION.—
“(i) IN GENERAL.—The Secretary”; and
(2) by adding at the end the following new clause:
“(ii) SPECIFIED INFORMATION.—In responding to any query related to subparagraph (A)(i), the Secretary, notwithstanding any other provision of law, shall identify to the applicable plan whether a claimant subject to the query is, or during the preceding 3-year period had been—
“(I) entitled to benefits (or enrolled for benefits) under the program under this title on any basis, and to the extent applicable, shall identify by plan name and address any Medicare Advantage plan under part C and any prescription drug plan under part D in which the claimant is enrolled or has been enrolled during such period; or
“(II) eligible for benefits under a State plan (or waiver of such plan) under the program under title XIX on any basis, and whether the claimant is enrolled, or has been enrolled during such period under such State plan (or waiver).”.
Section 3. Effective Date.
The amendments made by section 2 shall apply with respect to queries submitted on or after the date that is 6 months after the date of the enactment of this Act.
Since primary payers like employers, carriers, corporate defendants, insurers, and third party administrators do not know or are privy to the identity of Advantage, Prescription, or Medicaid plans that may have paid medical expenses related to an auto, liability, no-fault, or work comp claim, over the last 6 years, such MAPs, PDPs, and Medicaid agencies have mounted an aggressive campaign seeking reimbursement through lawsuits permitted by state and federal law. This has ultimately produced both state and federal case law throughout the country allowing such entities to sue primary payers like employers, carriers, corporations, insurers, and third party administrators for double damages. In order to remedy this situation, and provide relief to MARC members and other similarly situated primary payers, the PAID Act offers to coordinate benefits between settling parties, Medicare Advantage Plans, Prescription Drug Plans, and Medicaid Programs by requiring the one entity with this information, CMS, to disclose the information to the parties at the time of settlement.
ABOUT THE AUTHOR
Rafael Gonzalez, Esq. serves as president and chief legal counsel of Flagship Services Group, a Medicare and Medicaid compliance company providing property and casualty insurers with mandatory reporting, conditional payment, and set aside allocation services. He has over 30 years experience in the auto, liability, no-fault, and work comp insurance industry, specializing in Medicare Secondary Payer compliance. Rafael earned his BS degree from the University of Florida, and his JD degree from the Florida State University.
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