GHP Communications Received in Response to Recovery Actions

20.6 – GHP Communications Received in Response to Recovery Actions (Rev. 12438; Issued: 01-04-24; Effective: 02-06-24; Implementation: 02-06-24) Section 1862(b) (2) (B) of the Act, as amended by § 2344(b) of the Deficit Reduction Act of 1984 (Pub. L. 98-369), gives the Government the right to recover mistaken Medicare payments. Medicare must be reimbursed conditional primary benefits paid. The definition of primary payer, primary payment, and primary plan is found in 42 CFR § 411.21. If the GHP still refuses to reimburse Medicare or does not respond to requests, the MSP Contractor refers the case to Treasury in accordance with the Debt Collection Improvement Act (DCIA). If a GHP that is primary to Medicare refuses to reimburse Medicare for mistaken payments Medicare has made, the GHP must explain its reason. If the explanation is that plan benefits are not payable, and no valid defenses to non-payment are applicable, the MSP Contractor shall not accept the explanation without supporting evidence from the GHP and/or the employer/ other plan sponsor. Valid defenses may include: coverage status; non-covered services; physician, provider, or other supplier duplicate primary payment (DPP); capitation; timely filing; employer size (working aged and disabled); long-term disability. If no valid defense is given, the MSP Contractor shall inform the employer/ other plan sponsor that it is obligated to refund such payments to Medicare under applicable Medicare authority. Explanations that may not be accepted could include: the plan has not received a claim from the beneficiary; the insurance policy does not provide for payments to third parties; the plan maintains it is secondary payer for individuals who are in a 30-month End Stage Renal Disease (ESRD) coordination period; the plan provides benefits secondary to Medicare regardless of the employment status of the individual or the individual’s spouse; or the plan does not respond. If a GHP states that a primary payment was made, the MSP Contractor shall request an explanation of the benefits paid. In this situation, the information regarding the DPPs shall be forwarded to the appropriate A/B MACs and DME MACs. The A/B MACs and DME MACs shall recover any provider, physician, or other supplier, DPP. If payment was made to the beneficiary, the MSP Contractor shall obtain a copy of the EOB from the employer/ other plan sponsor/GHP or the party that received the payment to confirm whether a true DPP situation exists with the beneficiary. It requests the party that received the GHP payment to refund the excess Medicare payment. The excess Medicare payment is the difference between the proper (as determined under the applicable regulations at 42 C.F.R. 411, Subpart E) Medicare conditional primary payment and the amount Medicare is obligated to pay as secondary payer. MSP Contractors shall use extra care when evaluating defenses submitted by the insurer/TPA when the debtor is the employer/ other plan sponsor. A defense raised by the insurer/TPA might be valid if the insurer/TPA were being pursued with respect to the debt, but invalid as a defense for the employer/ other plan sponsor. For example, the insurer might respond that it did not provide coverage during the period in question, or the TPA might respond that its contract was not in effect during the period in question. While proper documentation could establish these as defenses for the insurer and/or TPA, they are not defenses for the employer/ other plan sponsor. The employer/ other plan sponsor could have provided coverage through another insurer or had a different TPA contract in effect. Where the offered defense is an issue involving the specific coverage or payment limits of the policy, this should not be an issue. For example, a defense of exhaustion of the payment limits of the policy applies equally to the employer/ other plan sponsor and the Insurer/TPA.