Medicare Advantage Plan Recovery



Question: As you have cautioned, Medicare Advantage Plans are becoming more assertive in recovering their payments. I have been contacted via telephone and email by a person at NexClaim Recoveries who says she is the Medicare recovery contractor for a Medicare Advantage Plan, VIVA Health. She claims that one of her plan members wants my insured to pay for medical expenses related to an accident that occurred on my insured’s premises. She states that the plan member told her what happened and that my insured was clearly negligent. Our inquiry does not support her supposition which is not the issue here at this point. Our dilemma is that the plan member has never made a liability claim or presented any related medical bills for payment under the general liability, no fault-med pay to our insured.

  1. Under a premises liability-GL policy, does a Medicare Advantage Plan have a subrogation interest when no claim has been made by the potential claimant?
  2. Is there a duty to pay a GL claim solely at the request of the subrogee, the entity who is assuming the legal right to attempt to collect a claim of another, subrogor?


Answer: Thank you for your question. Assuming that a Medicare Advantage Plan is claiming the same type of right as Medicare as provided under the Medicare Secondary Payer Act (MSP) we offer the following for your consideration with your legal counsel:

  • Pursuant to the MSP, two things must occur before CMS’ priority right of recovery would ripen: 1) a primary plan or payer must accept responsibility (but not necessarily liability) for a beneficiary’s medicals; and 2) that responsibility must be evidenced in a judgment, a compromise for release or other means. Short of both things occurring, Medicare’s right does not ripen. Any payment made is made conditionally until a primary payer accepts responsibility.
  • 42 CFR 422.108

It would seem that a claim is not reliant upon the beneficiary having made a prior claim but such a claim would require some showing of responsibility.


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