The Gibson Firm is at the forefront of the fight to preserve provider and patient rights under the Medicare as Secondary Payer (MSP) Act provisions for individuals with End Stage Renal Disease (ESRD). In Bio-Medical Applications of Tenn., Inc. v. Cent. States, Se. & Sw. Areas Health and Welfare Fund, 648 F. Supp. 2d 988 (E.D. Tenn. 2009), TGF secured the first favorable decision for a dialysis provider using the provisions of the MSP Act to seek reimbursement. In that case, the court held that a group health plan illegally takes into account an ESRD patient’s Medicare entitlement when the plan language terminates its coverage based on the ESRD-based Medicare entitlement. This holding required the plan to pay primary benefits for all dates of service.
MSP laws prohibit group health plans from taking into account that an individual is entitled to Medicare based on ESRD and from differentiating in benefits provided to those with ESRD. Actions that constitute impermissibly taking into account or differentiating include terminating coverage, reducing reimbursement, converting from commercial payer coverage to Medicare Advantage coverage, or imposing additional obligations not required of other participants.
Plans have begun to take into account and differentiate by designing plan limitations that apply to outpatient dialysis or decrease benefits according to some formula, usually a cost-based percent of Medicare calculation, designed to coincide with Medicare entitlement. These creative techniques are nothing more than substitutes for ESRD Medicare entitlement differentiation.
TGF will continue to shape the national landscape in MSP law by recovering primary payments for providers and litigating contested issues. TGF assists in enforcing the MSP laws as well as identifying new payer strategies for unlawfully taking into account and differentiating.
TGF identifies and fights Medicare as Secondary Payer Act Violations — including:
Converting enrollees to Medicare Advantage plans upon ESRD Medicare entitlement (or dual entitlement situations)
Reducing reimbursement (with or without justification in the plan document) after the first three months of service
Plan amendments that reduce benefits to those with ESRD, Medicare, or some equivalent, such as “outpatient dialysis”
Plan use of “repricers” that specialize in “dialysis cost control”
TGF works with dialysis providers to successfully resolve many ESRD-related claims denials without need for legal proceedings or litigation
TGF successfully contests refund demands when payers attempt to recoup or off-set voluntary payments made during or after the ESRD Medicare coordination of benefits period
TGF has found that payers routinely attempt to discontinue a patient’s benefits once it learns the patient has become eligible for Medicare, resulting in retro-denials and requests for refunds
In addition to these ESRD-specific issues, Dialysis providers still also experience the same issues as those dealt with by all medical providers, including those further described in the sections listed below: