Question: If a medicare beneficiary opts out of traditional Medicare and uses a BCBS, Humana, AARP plan, and is in an accident and is not put on notice via the replacement plan, is our firm and the beneficiary required to notify the insurance plan of a possible lien/claim?
Answer: It would appear that your question is referring to Medicare Part C, also known as Medicare Advantage. Medicare Advantage plans, also referred to as Part C plans, were established under Part C of Title XVIII of the Social Security Act as an alternative to traditional Medicare. These plans allow Medicare entitled individuals to receive healthcare services through a non-governmental organization. As a replacement to traditional fee-for-service Medicare, Part C plans must cover all of the services that traditional Medicare (Parts A and B) cover. This coverage is provided by organizations, primarily insurance companies, who contract with the Centers for Medicare and Medicaid Services (“CMS”) to administer Medicare benefits.
While there is no express statutory requirement for CMS to provide notice of conditional payments made in providing traditional fee-for-service Medicare (Parts A and B) benefits, the same is not true for Part C plans. 42 C.F.R. § 422.108(b) states that it is the responsibility of the Part C plan to identify payers that are primary to Medicare and, the amounts payable by those entities. Nonetheless, notice requirements for a beneficiary may still exist; however, they arguably would be based on contractual plan language or required by state law (affirmative notice states include FL, GA, KY, MN, MT). As a result, informing plan beneficiaries of their potential contractual obligations is a good rule of thumb for plaintiff’s attorneys.