Medicare is Primary Payer for Treatment of Injuries Occurring Prior to Passage of MSP Act


The New Jersey Superior court addressed the question of whether Medicare or a private insurer had primary payment responsibility for ongoing medical injuries arising out of an accident occurring prior to the passage of the Medicare Secondary Payer Act (MSPA). Cooper Hosp. Univ. Med. Ctr. v. Selective Ins. Co. of Am., 2020 N.J. Super. Unpub. LEXIS 2235 (Nov. 18, 2020).


In this case, the injured individual was left with paraplegia after a car accident in 1977. The injured individual’s father had a no-fault insurance Personal Injury Protection (PIP) policy through Defendant Selective. Selective acted as the primary payer for the injured individual’s ongoing medical treatment before he became disability entitled to Medicare benefits, and continued to pay for accident-related care for decades afterward. As such, the Plaintiff Cooper Hospital argued that Selective should continue paying for the injured individual’s medical care.


The court determined that the MSPA clearly permits Medicare to remain the primary payer for injuries arising before December 5, 1980, and that Selective’s mistake in acting as the primary payer did not change that. The court held that, going forward, Medicare should be billed as the primary payer and that the Plaintiff should accept payment from Medicare according to its fee schedule.


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