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Medicare Secondary Payer Compliance: Providers (Part V)

Health care providers also have important responsibilities under the MSP law.  Small and mid-sized providers should be on special alert, as they may lack the same level of centralized data processing and availability of in-house counsel to keep them informed of Medicare enforcement trends and regulatory requirements. Healthcare providers have MSP responsibilities, although they are less onerous than those placed upon GHPs and NGHPs.  Generally, providers must implement certain procedures to determine each patient’s Medicare eligibility status and submit claims to the proper insurer for reimbursement.  These procedures include asking the patient his or her Medicare eligibility status, checking the Common Working File, and creating and maintaining an internal database that stores information on each patient’s insurance coverage.  When inquiring about a patient’s insurance coverage, providers are encouraged to use a CMS Questionnaire found on the CMS website.1 Providers must also submit an Explanation of Benefits (EOB) form with each claim to Medicare to ensure proper billing.2  Providers should inquire as to whether the reason the patient is being seen for treatment is prompted by an injury that would be covered by an NGHP provider, such as an automobile accident, fall, or injury in the workplace.

If a provider submits an improper claim to Medicare but receives a conditional payment, the provider must reimburse Medicare within 60 days of receiving the payment and will not be penalized if the provider maintains an internal database that stores information on each patient’s insurance coverage and the provider can show that the claim was submitted as a result of false information provided by the beneficiary or someone acting on the beneficiary’s behalf.3  However, if a provider does not reimburse a conditional payment within the timeframe mandated in a Medicare demand letter, it can face civil monetary penalties, such as paying interest on any outstanding payment and being assessed double damages.4

These rules are summarized below:

Acting Party Responsibilities Liabilities for Non-Compliance

· Investigate each patient’s Medicare eligibility by asking the beneficiary his/her Medicare status and by checking the Common Working File to verify each patient’s Medicare status


· Maintain a database that includes each patient’s insurance coverage

· Properly bill Medicare

· Include all relevant MSP information or Explanation of Benefits with Medicare claims

· Reimburse Medicare in 60 days if improperly billed

·Must pay interest on reimbursement if paid 60 days after issuance of demand letter


· Possible FCA liability if the claims to Medicare were false or fraudulent


This is part 5 of 7 in the Medicare Secondary Payer Compliance series. Subscribe to our blog for future updates. Part 4 can be accessed here: Medicare Secondary Payer Compliance: Non-Group Health Plans (NGHPs) (Part IV)

Medicare Secondary Payer Compliance: Group Health Plans (Part III)

Medicare Secondary Payer Compliance: Conditional Payments (Part II)

Medicare Secondary Payer Compliance: An Introduction (Part I)

1. https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Provi....

2. Medicare Secondary Payer Manual, Ch. 3 § 30.5.B.

3. 42 CFR § 489.20.

4. 42 CFR § 489.24.


Andrew Kuder contributed significantly to the preparation of this post.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VIII, Number 60



About this Author

Gary Herschman, Epstein Becker Law Firm, Healthcare Attorney

GARY W. HERSCHMAN is a Member of the Firm in the Health Care and Life Sciences practice, in the Newark and New York offices of Epstein Becker Green. He also serves on Epstein Becker Green’s National Health Care and Life Sciences Steering Committee, and prior to joining the firm, Mr. Herschman was Co-Chair of the Health Care Practice Group of a large regional law firm. He is also a member of the firm's Board of Directors.

Mr. Herschman represents a diverse group of health care clients, including health systems, hospitals, nursing...

Melissa Jampol, Epstein Becker Law Firm, Health Care Attorney

Melissa Jampol is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the New York office of Epstein Becker Green. A former federal and state prosecutor, Ms. Jampol represents health care organizations, and their officers and directors, in a variety of enforcement matters at both the state and federal levels.

During her tenure as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of New Jersey, Ms. Jampol served in the Health Care and Government Fraud, Violent Crime, and Organized Crime & Gang Units, where she led significant, complex investigations and prosecuted a broad range of high-profile criminal cases, including those involving health care fraud, money laundering, mail and wire fraud, tax fraud, Anti-Kickback Statute violations, child abuse, violations of racketeering (RICO) statutes, and securities fraud. She previously served as an Assistant District Attorney at the New York County (Manhattan) District Attorney's Office, where she investigated and prosecuted sex crimes and violent crimes and led investigative teams on money-laundering and tax-evasion cases.

Robert E. Wanerman, Epstein Becker Green, Health Lawyer

ROBERT E. WANERMAN is a Member of the Firm in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. His practice concentrates on regulatory, reimbursement, and compliance matters affecting health care manufacturers, service providers, and investors in health care organizations. He has extensive experience counseling clients in matters arising under the Medicare and Medicaid programs, administrative law and procedure, the False Claims Act, clinical research rules, grant administration rules, the Anti-Kickback and Stark laws,...

Tristan Potter-Strait Healthcare Lawyer Epstein

Tristan A. Potter-​Strait is an Associate in the Health Care and Life Sciences practice, in the Newark office of Epstein Becker Green. She will be focusing her practice on such areas as fraud and abuse, compliance, transactional regulatory health care due diligence, and government investigations. 

Ms. Potter-Strait received her J.D., cum laude and with a concentration in Health Law, from Seton Hall University School of Law, where she also earned a Health Care Compliance Certification, received the school’s Health Law Award.