Put another way, the Medicare Second-
ary Payer Act prohibits Medicare from paying, except as provided in the condi- tional repayment paragraph for medical services when 1. Payment for the service has already been made; or
2. Payment for the service can be ex- pected to be made promptly.
That part of the Medicare statute that authorizes the Government to seek reim- bursement, then, only applies to payments made by Medicare when payment for the service had already been made by a pri- mary payer or, at the time payment was made, could have been expected to be made by a primary payer. If the payment for service was not made under these conditions, then Medi- care did not pay as a secondary payer. Medicare paid as a primary payer.
What About This Word — Prompt? In examining this issue a mistake that many lawyers and courts have made when relying on older case law is to fail to real- ize that the prompt payment language was not always in the statute. It was added in 1984 and many cases that discuss the Government’s right to reimbursement arose before 1984. Other cases have sim- ply misquoted the statute. When first enacted in 1980, there was
no reference to prompt payment. More- over, the statute did provide for a general right to reimbursement for any payment made under Medicare when a later pay- ment was made by workers’ compensation or an automobile or liability insurance policy or plan (including self insurance). The statute said: Payment under [the Medicare pro- gram] may not be made with respect to any item or service to the extent that payment has been made, or can rea- sonably be expected to be made (as determined in accordance with the regulations), with respect to such item or service, under a workmen’s compen- sation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (in- cluding a self-insured plan) or under no-fault insurance. Any payment un- der [the Medicare program] with respect to any item or service shall be conditioned on reimbursement to the appropriate Trust Fund established by this subchapter when notice or other information is received that payment for such item or service has been made under such a law, policy, plan or in- surance…. Omnibus Budget Reconciliation Act of
Spring 2003
1980, Pub. L. no. 96-499, § 953, 94 Stat. 2647 (emphasis added.) In 1984, the statute was amended to
add the reference to prompt payment. Also, all payments continued to be con- ditioned on reimbursement. Payment under [the Medicare pro- gram] may not be made with respect to any item or service to the extent that payment has been made or can reason- ably be expected to be made promptly (as determined in accordance with (the) regulations), with respect to such item or service, under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance. Any pay- ment under [the Medicare Program] with respect to any item or service shall be conditioned on reimbursement to the appropriate Trust Fund established by this title when notice or other in- formation is received that payment for such item or service has been made or could be made under such a law, policy, plan or insurance.
Deficit Reduction Act of 1984, Pub. L. No. 98-369, § 2344 (a), 98 Stat. 1095.
The Current Law In 1989, the statute was amended
again. See Omnibus Budget Reconcilia- tion Act of 1989, Pub. L. 101-239, § 6202 (b) (1), 103 Stat. 2229.
(A) In General Payment under [the Medicare pro- gram] may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that—
(i) payment has been made, or can reasonably be expected to be made, with respect to the item or serviced as required under [a group health plan or large group health plan] or,
The statute is
parsed out, above, but here it is in full (and in the order Congress wrote it):
How The Government Attempts to Avoid The Clear Language of The Current Statute
The Government Attempts To Get Around The Clear Language Of The Statute By Making The Following Ar- guments (Which Are Summarized From Its Opening Brief In Goetzmann).
1. Nothing in the most recent (1989) amendments to the statute suggest that Congress intended to eliminate the savings to the Medicare pro- gram that the MSP provisions were
(Continued on page 14)
(ii) payment has been made or can rea- sonably be expected to be made promptly (as determined in accor- dance with regulations) under a workmen’s compensation law or plan of the United States or a State or under an automobile or liabil- ity insurance policy or plan (including a self-insured plan) or under no fault insurance.
In this section, the term primary plan means a group health plan or large group health plan, to the extent that clause (i) applies, and a workmen’s compensation law or plan, an automobile or liability insurance policy or plan (including a self- insured plan) or no-fault insurance, to the extent that clause (ii) applies.
(B) Repayment Required (i) Primary plans
Any payment under [the Medicare program] with respect to any item or service to which subparagraph (A) applies shall be conditioned on reimbursement to the appropriate Trust Fund established by this sub- chapter when notice or other information is received that pay- ment for such item or service has been or could be made under such subparagraph.
Trial Reporter
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