Those involved in the administration of workers’ compensation claims have become familiar with the obligation to conduct Conditional Payments searches through CMS in claims involving Medicare beneficiaries. This is done to discover amounts of conditional payments so that required reimbursement can be considered. One loophole in Conditional Payment searches has been that they only reveal payments made through Parts A and B of traditional Medicare. Some Medicare beneficiaries use Medicare Advantage plans (“MAP”s or “MAO’s) which are plans in which private insurance approved by Medicare substitutes for Parts A and B, and most often Parts C and D also. The trend among Federal Courts is to find that Medicare Advantage Plans have the same rights of recovery as does traditional Medicare, relying on the “Private Cause of Action” theory. The problem this creates for workers’ compensation claims administrators and attorneys is that a Conditional Payments search only discovers payments made by traditional Medicare.
Currently the only way to discover Conditional Payments made by a Medicare Advantage Plan is to ask a claimant who is, or since the accident has been, a Medicare beneficiary whether he or she is or has been covered by a Medicare Advantage Plan during such time. If the claimant has been covered by an Advantage Plan it would be necessary to identify the Plan, its contact information, and the dates of coverage. This information will permit an inquiry to be made to each Plan in order to get a complete list of all Conditional Payments for which the employer or insurer may be liable.
Relief is on the way in the Provide Accurate Information Directly Act (“PAID Act”) signed into law on December 11, 2020. The PAID Act provides that when a Conditional Payments search is submitted to CMS, CMS must, in addition to identifying whether the claimant is a Medicare beneficiary and whether any Conditional Payments have been made under Parts A and B, CMS will also have to identify any Plan under which the claimant has been covered during the preceding three years with the names and addresses of any such Medicare Plan. The PAID Act will go into effect on December 11, 2021.
For the next year it will still be necessary to obtain information about any applicable Medicare Advantage Plans from the claimants. Thereafter it will be advisable to inquire of the claimants if more than three years have elapsed since the date of the accident or the date on which the claimant became a Medicare beneficiary, but when the PAID Act becomes active it will be easier for employers and insurers to get a thorough report of Conditional Payments for which they may be liable.
Evans & Dixon will monitor the implementation of the PAID Act and will post supplemental announcements when appropriate.
James M. Gallen | jgallen@Evans&Dixon.com | 314-552-4012
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