Medicare Secondary Payer Conditional Payment Forum Q&A

Ryan Weiner, Esq., COO of MASSIVE and long-time authority on liability, no-fault, and workers’ compensation conditional payments, presented at the virtual 6th Annual Medicare Secondary Payer Conditional Payment Forum on July 12. Ryan discussed conditional payments resolution in no-fault claims and received the following questions during the presentation.


Question: “Do Medicare Advantage Organizations act in the same way as Original Medicare does?”

Answer: Yes. Medicare Advantage Organizations must follow the Medicare Secondary Payer Act (42 USC 1395y). That means they have an undeniable right to reimbursement and you must seek them out. On the positive side, they must also follow federal regulations that state the plan will reduce for attorneys fees and costs for all Medicare “liens” (42 CFR 411.37). Medicare Supplemental Plans are different – they are private plans meant to fill the gaps of Medicare (literally, gap plans) and are not subject to the Medicare Secondary Payer Act.


Question: “Can you speak to the situation where a liability claim resolves, BCRC issues a Demand against the settlement, and plaintiff attorney then looks to the carrier to resolve the BCRC debt off the available no-fault policy limits?”

Answer: In liability cases, Medicare considers the plaintiff it’s “debtor,” or the person responsible for this Medicare lien. Medicare will attempt collection only from the plaintiff. Anything else that happens is outside the scope of the Medicare lien. We sometimes see plaintiff attorneys ask no-fault or workers’ compensation carriers to pay these liens. That is between the attorneys. Medicare does not care and will not stop its process for this scenario to play out further.


Question: “When a liability claim settles and we (plaintiff attorney) report settlement details to Medicare, but an additional settlement later (ex: UIM) comes in later, do we provide those for review as additional settlement funds obtained?”

Answer: Yes. Medicare expects to be told about each settlement. If plaintiffs do not tell Medicare, defense will do so through Section 111 Reporting any. This reporting leads to a new file being opened where the plaintiff attorney is not authorized under Medicare rules. We usually see these new files are ignored by the individual plaintiffs, leading to demands, interest, and significant difficulties down the road. Best practice is to stay ahead of this issue by reporting each settlement as it happens. This situation can also happen in medical malpractice where a hospital and doctor settle separately (or even at the same time, but from different insurance pools).


Don’t miss Ryan’s updated presentation on this topic at the Kansas Annual Workers’ Compensation Seminar . Ryan will discuss “Medicare Lien Resolution in Workers’ Comp Claims” on September 28, 2022. Register today!


MASSIVE is here to help! If you’re looking for a way to increase your client’s net recovery or eliminate the unnecessary time spent resolving liens yourself, contact us today!