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Reminder: Don’t Forget About Medicare Advantage and Prescription Drug Plans

Medicare Advantage litigation has increased substantially over the past few years as Advantage and Prescription Drug plans work to expand and enforce their recovery rights under the Medicare Secondary Payer Act. Many federal courts have held that Medicare Advantage plans can assert a private cause of action and recover double damages from defendants/insurers if liens are not resolved, even if the parties agree that the claimant will be responsible for reimbursement. For this reason, it has become increasingly important to ensure that Advantage and Prescription Drug plan liens are resolved as part of settlement.

Determining the identity of a claimant’s Advantage or Prescription Drug plan is not always an easy task, unfortunately. This coverage is provided by private companies, like Humana, Blue Cross Blue Shield, and UnitedHealthcare, and claimants often do not realize that their personal health insurance includes Medicare Advantage or Prescription Drug coverage. It is best to begin requesting information necessary to verify a claimant’s Medicare Advantage and Prescription Drug plan coverage during the initial claim investigation or during discovery in litigated cases. Claimants can be asked to confirm all Advantage or Prescription Drug plans they have been enrolled in since the date of injury and to provide copies of their insurance card(s).

Keep in mind that conditional payment claim letters from Medicare/CMS do not include payments made by Advantage and Prescription Drug plans. These plans need to be contacted directly for lien information. Please let us know if we can assist in determining whether or not a claimant is enrolled in a plan and resolving any liens. We would be happy to help!


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