(a) Basic rule. CMS does not pay for services to the extent that Medicare is not the primary payer under section 1862(b) of the Act and part 411 of this chapter.
(b) Responsibilities of the MA organization. The MA organization must, for each MA plan—
(1) Identify payers that are primary to Medicare under section 1862(b) of the Act and part 411 of this chapter;
(2) Identify the amounts payable by those payers; and
(3) Coordinate its benefits to Medicare enrollees with the benefits of the primary payers, including reporting, on an ongoing basis, information obtained related to requirements in paragraphs (b)(1) and (b)(2) of this section in accordance with CMS instructions.
(c) Collecting from other entities. The MA organization may bill, or authorize a provider to bill, other individuals or entities for covered Medicare services for which Medicare is not the primary payer, as specified in paragraphs (d) and (e) of this section.
(d) Collecting from other insurers or the enrollee. If a Medicare enrollee receives from an MA organization covered services that are also covered under State or Federal workers' compensation, any no-fault insurance, or any liability insurance policy or plan, including a self-insured plan, the MA organization may bill, or authorize a provider to bill any of the following—
(1) The insurance carrier, the employer, or any other entity that is liable for payment for the services under section 1862(b) of the Act and part 411 of this chapter.
(2) The Medicare enrollee, to the extent that he or she has been paid by the carrier, employer, or entity for covered medical expenses.
(e) Collecting from group health plans (GHPs) and large group health plans (LGHPs). An MA organization may bill a GHP or LGHP for services it furnishes to a Medicare enrollee who is also covered under the GHP or LGHP and may bill the Medicare enrollee to the extent that he or she has been paid by the GHP or LGHP.
(f) MSP rules and State laws. Consistent with § 422.402 concerning the Federal preemption of State law, the rules established under this section supersede any State laws, regulations, contract requirements, or other standards that would otherwise apply to MA plans. A State cannot take away an MA organization's right under Federal law and the MSP regulations to bill, or to authorize providers and suppliers to bill, for services for which Medicare is not the primary payer. The MA organization will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.
[63 FR 35077, June 26, 1998, as amended at 65 FR 40320, June 29, 2000; 70 FR 4721, Jan. 28, 2005; 75 FR 19805, Apr. 15, 2010]
Notes of Decisions
Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016).
· cites it 8× “” 42 C.F.R. § 422.108 (f). Under subpart B of part 411 of chapter 42, CMS regulations identify two causes of action available to the Secretary: one against a primary payer and one against any entity (including 12 Case: 15-11436 Date Filed: 08/08/2016 Page: 13 of 29 a…”
Commonwealth v. UPMC, Appeal of: UPMC, 129 A.3d 441 (Pa. 2015).
· cites it 3× “Moreover, Highmark points out that, under relevant federal regulations, see 42 C.F.R. § 422.108 (establishing secondary payment procedures for Medicare Advantage when “Medicare is not the primary payer.”
Collins v. Wellcare Healthcare Plans, Inc., 73 F. Supp. 3d 653 (E.D. La. 2014).
· cites it 6× “18-1 at 16) (citing 42 C.F.R. § 422.108 (f)). Wellcare avers' that its claim for reimbursement is thus consistent with agency regulations and guidance.”
Guillermina Parra v. Pacificare of Arizona, Inc., 715 F.3d 1146 (9th Cir. 2013).
· cites it 2× “The cross-reference to § 1395y(b)(2)(B)(iii) in the MAO Statute simply explains when MAO coverage is secondary to a primary plan – “under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2)” – that is, under the same…”
In Re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 685 F.3d 353 (3rd Cir. 2012).
· cites it 2× “Finally, Humana sought an order from the District Court ordering Glaxo to disclose information about settlements that Humana’s enrollees entered into with Glaxo. The District Court declined to grant Humana the equitable relief it sought.”
Aetna Life Ins. Co. v. Big Y Foods, Inc., 52 F.4th 66 (2d Cir. 2022).
· cites it 2× “Specifically, 42 C.F.R. § 422.108 (f) provides that an “[MAO] will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.”
Trezza v. Trezza, 104 A.D.3d 37 (N.Y. App. Div. 2012).
· cites it 7× “At 42 CFR 422.108, entitled “Medicare secondary payer (MSP) procedures,” regulations of the Centers for Medicare & Medicaid Services promulgated pursuant to the foregoing enabling provision describe the procedures to be employed by Medicare Advantage organizations in billing for…”
Aetna Life Ins. Co. v. Guerrera, 300 F. Supp. 3d 367 (D. Conn. 2018).
· cites it 4× “Aetna specifically *377 cites the court to section 422.108(f) of title 42 of the Code of Federal Regulations (" section 422.”
Est. of Ethridge v. Recovery Mgmt. Sytems, Inc., 326 P.3d 297 (Ariz. Ct. App. 2014).
· cites it 5× “” 42 C.F.R. § 422.108 (d)(2). 14 Subsection (f) of the same regulation not only prevents a state from “tak[ing] away” a Medicare Advantage plan’s right to bill but also — of critical importance here — grants to Medicare Advantage plans the same right to reimbursement for…”
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