C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 411—EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT › Subpart F—Special Rules: Individuals Eligible or Entitled on the Basis of ESRD, Who Are Also Covered Under Group Health Plans

42 C.F.R. § 411.165

Basis for conditional Medicare payments

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(a) General rule. Except as specified in paragraph (b) of this section, the Medicare intermediary or carrier may make a conditional payment if—

(1) The beneficiary, the provider, or the supplier that has accepted assignment files a proper claim under the group health plan and the plan denies the claim in whole or in part; or

(2) The beneficiary, because of physical or mental incapacity, fails to file a proper claim.

(b) Exception. Medicare does not make conditional primary payments under either of the following circumstances:

(1) The claim is denied for one of the following reasons:

(i) It is alleged that the group health plan is secondary to Medicare.

(ii) The group health plan limits its payments when the individual is entitled to Medicare.

(iii) Failure to file a proper claim if that failure is for any reason other than the physical or mental incapacity of the beneficiary.

(2) The group health plan fails to furnish information requested by CMS and necessary to determine whether the employer plan is primary to Medicare.

[57 FR 36015, Aug. 12, 1992. Redesignated and amended at 60 FR 45362, 45370, Aug. 31, 1995; 60 FR 53877, Oct. 18, 1995]
Notes of Decisions
Cited in 4 cases, 2009–2020 · leading case: DaVita, Inc. v. Marietta Mem. Hosp., 978 F.3d 326 (6th Cir. 2020).
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DaVita, Inc. v. Marietta Mem. Hosp., 978 F.3d 326 (6th Cir. 2020). “42 C.F.R. § 411.165 Basis for conditional Medicare payments.”
Bio-Med. Applications of Ga. v. City of Dalton, 685 F. Supp. 2d 1321 (N.D. Ga. 2009). · cites it 2× “” 42 C.F.R. § 411.165 (a)(l)(2009). However, if the group health plan fails to make a payment because it contends that it is secondary to Medicare, Medicare will not make a conditional payment.”
Davita Inc. v. Virginia Mason Mem'l, 981 F.3d 679 (9th Cir. 2020). “42 C.F.R. § 411.165 (b); cf. 42 U.S.C. § 1395y(b)(2)(B)(i) (authorizing conditional payments when a tort-liability insurer is not reasonably expected to pay).”
Star Dialysis, LLC v. WinCo Foods Emp. Benefit Plan (D. Idaho 2019). · cites it 2× “” 42 C.F.R. § 411.165 (a)(1). However, if the group health plan fails to make a payment because it contends that it is secondary to Medicare, Medicare will not make a conditional payment.”
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