End-of-Year Update: PAID Act and Post-Settlement Regulations

December 10, 2020

December is always a busy month in Medicare Secondary Payer compliance and 2020 is no different. This week we have witnessed important developments in legislation and regulation that could eventually impact claims payers.

PAID Act Passes in House of Representatives

On December 8th the Provide Accurate Information Directly (PAID) Act was passed in the House of Representatives.  The PAID Act would update the Section 111 “query” process to require Medicare to share Medicare Part C and Medicare Part D enrollment information whenever a Medicare beneficiary is identified. 

Through a number of favorable court rulings beginning in 2012, Medicare Advantage Plans often enjoy similar recovery rights to original Medicare.  Most courts have agreed that Advantage Plans are entitled to sue claims payers in Federal Court for double damages whenever a payment is made by an Advantage Plan that should have been directly or indirectly paid by the claims payer.  As ECS has covered extensively for the last several years, claims payers are often in a difficult position of lacking access to any information that would identify that an Advantage Plan is paying a beneficiary’s medical bills.  Absent that information, the claims payer runs a significant risk of being sued in Federal Court for failing to do something that is often nearly impossible.

The PAID Act would change that, by forcing Medicare to share Advantage Plan information with the claims payer.  Under current processes, Medicare provides a binary “Yes” or “Unknown” response to inquiries about Medicare coverage.  This allows a claims payer to identify individuals as Medicare beneficiaries but it ignores the Advantage Plan issue.  The PAID Act would require Medicare to share specific plan information, thereby allowing claims payers the opportunity to better coordinate medical coverage as well as identify potential recovery risk.  

The PAID Act will now move to the Senate.  If the Senate votes on the bill – either as a standalone or as part of an omnibus package of legislation – it is expected to pass and become law.  If the Senate adjourns without taking up the bill it will have to go back to the drawing board and be introduced in the next Congressional session which starts in early January.

Future Medical Regulations Update

CMS yet again pushed back the unveiling of a notice of proposed rulemaking on regulations governing post-settlement medical care of Medicare beneficiaries.  CMS and the Office of Management and Budget now plan to introduce the notice in March 2021.  As ECS has previously covered, this proposed rule would clarify existing MSP obligations associated with future medical items services on any bodily injury settlement.  The notice indicates that “this rule would clarify that an individual or Medicare beneficiary must satisfy Medicare’s interest with respect to future medical items and services related to such settlements, judgments, awards, or other payments.”

ECS will continue to closely monitor this proposal.  The regulatory notice has consistently indicated that Medicare’s interest in post-settlement payments must be “satisfied,” which is a concept that has not been previously articulated.  This continues to bear watching and ECS will continue to provide further updates on any developments.

ExamWorks Compliance Solutions continuously monitors regulatory and legislative developments in the Medicare Secondary Payer space.  For further information or if you have any questions, contact ExamWorks Vice President of Medicare Compliance Marty Cassavoy at marty.cassavoy@examworks-cs.com or 781-517-8085.

Marty Cassavoy

Marty Cassavoy

Marty Cassavoy is the Sr. Vice President of MSP Compliance and Business Development at ExamWorks Compliance Solutions. Marty and his team develop solutions for challenges in all areas of Medicare Secondary Payer compliance and across all insurance types. An attorney licensed to practice law in Massachusetts, Marty works out of ExamWorks’ Woburn, Massachusetts office and can be reached at 781-517-8085 or martin.cassavoy@ExamWorksCompliance.com