H.R.5881 Introduced in An Effort to Add Transparency to MSP Reporting Information

CMS, Medicaid, Medicare, Medicare Advantage, Medicare Set-Aside Blog, MSP News on May 22, 2018
Posted by Jean S. Goldstein, JD, CMSP

Last week, Congressman Gus Bilirakis and Congressman Ron Kind introduced legislation (H.R. 5881) in the House of Representatives to amend title XVIII of the Social Security Act, specifically in an effort to provide for transparency of Medicare Secondary Payer (MSP) reporting information.  Congressman Bilirakis issued a press release yesterday stating that, “[t]his legislation will ensure that beneficiaries, Medicare, and Medicaid have a clear and quick way to identify whether or not a participant has an MSP obligation, and provide information about how that obligation can be resolved.”

This legislation has been primarily driven by the challenges faced with discovering whether a Medicare beneficiary has a Medicare Advantage Plan (MAP), Part D plan, or even Medicaid.  At the very root of this issue is the fact that the Centers for Medicare and Medicaid Services (CMS) provides information regarding Medicare Part A and Part B, which assists with discovering conditional payments Medicare has made [1]; but CMS does not provide information about the supplemental plans for which a Medicare beneficiary is enrolled.  H.R. 5881 proposes that CMS share information regarding enrollment in MAP, Part D, and Medicaid to assist with the timely discovery of conditional payments and liens.  As we have seen and written about here on our blog, we are consistently seeing MSP litigation and aggressive recovery efforts throughout the country.  The timely sharing of information and ultimate identification of a beneficiary’s enrollment in supplemental plans would certainly decrease the amount of litigious MSP recovery efforts, as well as the concerns of double damages.[2]

For now, H.R. 5881 has been referred to the Committee on Ways and Means, and the Committee on Energy and Commerce.  The bill text is not yet available, but once available, the text can be found here.  We will be sure to keep you updated on any changes or movement involving the legislation. 

In the meantime, from a Medicare compliance standpoint, we offer the following best proactive practices as related to conditional payments/liens and primary payers’ MSP obligations:

  • Do not wait until settlement of a claim to identify all possible conditional payments.  Medicare conditional payment/lien investigation, and resolution should be done well in advance of settlement discussions;
  • Review all medical bills and understand all related work injury treatment;
  • Create an open dialogue with the injured worker or their counsel, if represented, inquiring about all plans a Medicare beneficiary is enrolled in.  The timely discovery of MAP, Part D, and/or Medicaid enrollment can benefit all settling parties; and
  • Create internal processes on how to timely handle conditional payments, MAP recoveries, and other liens.

Conditional payment recoveries and liens can be challenging, given the unknown factors, investigation, consultation, and need for a thorough working knowledge and understanding of a variety of recovery processes.  For this reason, it is imperative that conditional payments and other liens are handled properly and with established proactive processes to avoid unnecessary costs, litigation expenses, and undue delay in the resolution of claims.


 For assistance with conditional payments or lien resolutions, please contact our team at [email protected].  Our conditional payment and lien resolution team is comprised of an experienced group of clinical, legal, and claims professionals.  We advocate on your behalf to make sure you can settle your claim.

[1] Pursuant to Medicare Secondary Payer law (42 U.S.C. § 1395y(b)), Medicare may not make payment for medical services or treatment where payment has been made or can reasonably be expected to be made by a primary payer, such as a workers’ compensation plan, an automobile or liability insurance policy or plan (including self-insured plan) or no fault insurance.

[2] Under the MSP act, an MAO can bring a private cause of action and recover for money owed and double damages.