Medicare Advantage FAQs

What's the Difference Between Medicare and Medicare Advantage?

There are many different parts to Medicare. The four most popular parts are Medicare Part A, Part B, Part C and Part D. 

Medicare Part A provides hospital insurance while Medicare part B provides certain medical coverage outside of hospitals (think doctors visits and other outpatient care).

Medicare Part C (aka Medicare Advantage) came into being almost 15 years ago as a Medicare private pay option. It stands in the shoes of Medicare Parts A and B, allowing beneficiaries to choose plans based on the private marketplace instead of government-run healthcare. Every year, Medicare beneficiaries may opt in or out of a Medicare Advantage plan, either changing plans or returning to traditional Medicare Parts A and/or B.

Are Medicare Advantage reimbursement obligations handled differently than Medicare A/B?

Yes, it is a separate and distinct process. Most attorneys are accustomed to asking Medicare for a conditional payment letter, and then ultimately paying Medicare back once it issues a final demand letter. While that process addresses obligations owed for Medicare Parts A/B, it DOES NOT address obligations owed for Medicare Part C (aka Medicare Advantage).

Instead of asking Medicare directly for its conditional payment figure, you must contact the Medicare Advantage plan directly. Sometimes, that plan hires a recovery agent (such as Rawlings) to collect on its behalf.

The important thing to understand here is that you cannot handle Medicare Advantage obligations by contacting Medicare. 

Do Medicare Advantage Plans Have the Same Recovery Rights as Medicare Under the MSP Act?

Potentially, yes. Ever since the In Re Avandia Marketing decision from the U.S. 3rd Circuit Court of Appeals in 2012, other courts around the country (but for the 9th Circuit) have held that Medicare Advantage plans have the same standing as traditional Medicare under the MSP Act. As such, those plans have the same recovery rights under the same statute.

Since that decision, Medicare Advantage plans have sought to expand this recovery right nationwide, seeking recovery against all stakeholders (plan members/beneficiaries, plaintiff attorneys, insurance carriers, and self-insured entities). Several lawsuits are pending in courts today which will serve to further define these recovery rights, so stay tuned for more.

Do Medicare Advantage Plans Offset for Costs of Procurement?

They should. If the Medicare Advantage plan asserts its recovery rights pursuant to the MSP Act, then it must also respect the regulations Medicare has promulgated in support of that statute. One of those regulations (42 C.F.R.  § 411.37) addresses procurement cost offsets.

Before it issues a final demand letter, traditional Medicare (CMS) will apply a procurement cost offset to its final demand figure under certain circumstances to account for an attorney's fees, costs, and expenses incurred while representing the Medicare beneficiary. Medicare understands that but for that attorney's efforts, its recovery rights might never ripen, leaving Medicare to pay everything and recover nothing. Medicare Advantage plans, operating under the same statute and regulations as traditional Medicare, are likely to be held to that same standard.