Medicare as Primary Payor?

Question: Our firm has a case where the carrier for the defendant hospital is listed as the “primary payor,” although they’re disputing liability. The carrier contacted Medicare in pursuit notifying them of our client’s claim, and the information was entered into the computer system as the “primary payor.” (Medicare is secondary). We’ve notified Medicare that the defendant hospital will not pay, and they need to be removed, so our client can continue receiving benefits. We have even offered to provide a letter from the carrier confirming this, however; they believe that both the letter and the fact that we agreed to protect Medicare’s lien would not be sufficient. So now, we have a brain injured client who is in jeopardy of having his doctors refuse to see him due to the fact that their bills are being denied by the primary payor, and Medicare (as secondary payor) can take anywhere from 4-6 months before “considering” whether to pay the bills being denied. How fair is that? Despite my pleas for help, Medicare has NO answer as to how to resolve.

I’d love to hear how others are dealing with this situation.

Thanks,

Florida Attorney

Answer: You should contact the provider of service to ensure that they have all the necessary information and documentation to bill Medicare correctly. When Medicare is the secondary payer to automobile medical/no-fault or liability insurance, providers may, but are not required to, bill Medicare for conditional payment. Conditional payment means Medicare will pay the claims as if they had primary responsibility. When Medicare makes conditional payments they will however, actively pursue recovery of the funds paid by Medicare from the responsible person's auto or liability insurance. When a provider has reason to believe or knows that they have provided services to a beneficiary/client for which payment under liability insurance may be available they must:

• Bill only the liability insurer during the 120-days after services have been provided unless the providers have evidence that the liability insurer will not pay within the time period.
• If they have evidence that the liability insurer will not pay within the 120-day timeframe*, they may, but are not required to, bill Medicare for conditional payment. If they bill Medicare within the 120-day time period, the provider must supply documentation to support that payment will not be made promptly.
• After the 120-day timeframe has ended, the providers may, but are not required to, bill Medicare for conditional payment if the liability insurance claim is not resolved. At this point, the 120-day payment documentation is no longer required; however, we still need the liability insurer's name and address. *Note: The 120-day timeframe is defined as the earlier of the following:
  • The date a claim is filed with an insurer or a lien is filed against a potential liability settlement.
  • The date the service was furnished or, in the case of inpatient hospital services, the date of discharge.

Sometimes providers file liens in auto and liability cases and wait for a settlement before submitting a bill to Medicare-this is not considered a conditional payment, as providers are not requesting that Medicare pay. However, the 120-day timeframe is still to be followed. If providers choose to bill Medicare after the 120-day period they must withdraw claims against the liability insurer or liens placed on the beneficiary's/clients settlement. The Medicare reimbursement must be accepted as payment in full and providers may charge the beneficiary/client only for applicable deductible, coinsurance, and non-covered services. When the claim that a provider is filing includes a trauma diagnosis and an auto or liability insurance is involved, they must include the name, policy number and address of the liability insurer if requesting a secondary or a conditional payment. If liability insurance payment is made, Medicare will not pay secondary unless benefits are exhausted.