In February, my colleague Liz Longo was featured as a webinar speaker for the National Association of Subrogation Professionals (NASP) on the topic “Medicare Advantage Plan Recoveries: Best Practices and Shifting Legal Tides.” This topic has been evolving for more than 10 years as litigation and case law have disputed over the issue of whether the private cause of action for double damages under the Medicare Secondary Payer (“MSP”) Act provides Medicare Advantage (“MA”) Plans with the right to bring suit against primary payers. The early rulings generally held that the secondary payer rights and recourses granted to the government under the MSP are different and do not apply to MA plans under the federal statute. As such, the only recourse available to MA Plans was to pursue reimbursement of those conditional payments through contract-based action in state courts.
The most significant hurdle is overcoming the fundamental misconception that MA Plans are private insurers. In order to do so, MA Plans must be “all in” in the sense that they must adhere to all of the rules and regulations imposed upon an MA Plan. That being said, MA Plans must be sure to operate with caution in order to avoid compliance pitfalls. As such, MA Plans must notify members of appeals rights, track grievances, maintain records of coverage investigations, and stay up-to-date on DX code directives in the CMS MSP Manual.
MA Plans must also utilize effective subrogation pursuit and recovery strategies. For example, ICD-10 and external property and casualty databases are very effective methods of leveraging technology for member outreach. The MA Plan may also track chronic conditions or review MSP files made available monthly by CMS. In doing so, MA Plans will address a primary concern, which is to avoid member abrasion during the identification and investigation processes.
If you would like to hear more about our point of view on MA Plan recoveries and best legal practices for subrogation, you can listen to our recorded webinar, available in its entirety for NASP members by clicking here.