Reimbursement Claim by Medicare Supplemental Carrier

Posted by Matthew Garretson

Question:
Matt - I very much appreciate your input on the AAJ list serves on the various reimbursement issues that plague us all. I was wondering if you have any insight on reimbursement claims by private insurers serving as Medicare supplemental coverage (part D?). I have a 99-year-old assisted living resident who was allowed to walk out of the facility unattended and fell and broke her hip and arm. Most of the bills for treatment have been paid by Kaiser Permanente under her supplemental coverage. They have a standard reimbursement provision in the summary plan description which I can easily get around under Georgia's anti-subrogation law. Question is does Kaiser get to piggyback on the Medicare regs so that I have to deal with them? Thanks for any insights.

-Georgia Attorney

Answer:
This is a big area of confusion and is a gray area. We have been seeking clarification directly from CMS on this issue, because it is clear that the Part C providers are not part of the federal agency system. However, I believe this (see below) is the position that Kaiser will take.

40 – Medicare Secondary Payer (MSP) Rules

(Rev. 76, Issued: 10-28-05, Effective Date: 10-28-05)

A state cannot take away an MA organization’s right under Federal law and the MSP regulations to bill, or to authorize providers and suppliers to bill, for services for which Medicare is not the primary payer. The MA organization may exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations at 42 CFR Part 411, Subparts B through D.

I think that the anti-subro should apply to them b/c they are private entities. However, I haven't yet gotten CMS to concede the point.