No-Fault Cases and Medicare Recovery Claims: How They Work and What to Know

October 14, 2026 / 11 min read

As many recall, we recently released an article addressing Liability cases and Medicare recovery claims. In follow-up thereto, we now place the spotlight on Medicare recovery claims (also referred to hereinafter as “Medicare conditional payment” or “lien” claims) regarding no-fault, med-pay, and PIP cases (hereafter referred to simply and collectively as “no fault” cases). The scope of this article is limited to these claim types. Our next article will focus on workers’ compensation claims.

No-Fault and Medicare Recovery Claims

As discussed more fully below, Medicare lien claims continue to present unique challenges for no-fault insurers. Understanding how the different recovery processes operate, and how they impact these insurance claim types from a practical claims perspective is critical to develop appropriate compliance practices.

Toward this objective, the author outlines the following regarding Medicare recovery with respect to no-fault claims:

The first step – determine the claimant’s Medicare status

Determining whether the claimant is a Medicare beneficiary (or was a beneficiary at any one point during the claim) is the first step in assessing whether there may be a potential Medicare recovery claim. Here, the Center for Medicare and Medicaid Services’ (“CMS’s”) Section 111 “Query Process” can be very helpful.^[1]

In general, as part of CMS’s Section 111 Query Process, an insurer, or other risk bearing entity (known as the Responsible Reporting Entity or “RRE” in the Section 111 context),^[2]can submit the “Big 5 Data” points through the Query to determine the claimant’s Medicare status. The Big 5 data points are the claimant’s (a) first name, (b) last name, (c) gender, (d) date of birth, and (e) the Social Security Number (“SSN”) or Medicare ID (Health Insurance Claim Number [HICN] or Medicare Beneficiary Identifier [MBI]).^[3]

If there is a “match,” CMS confirms that the claimant is a Medicare beneficiary and provides the claimant’s current Medicare ID number, most recent Medicare Part A/B entitlement dates, as well as Medicare Advantage (Part C) and Medicare Prescription Drug Plan (Part D) enrollment information for the past three years, as may be applicable.^[4] While the Query does not provide lien amounts, the information it does provide (e.g. the claimant’s Medicare program enrollment status) can be very useful as it identifies what entities may have potential lien rights, and who the parties may need to contact for lien information.

Medicare Part A/B recovery - CMS’s process

If the claimant is enrolled in Medicare Part A and/or B (“Original” Medicare), it is CMS that pursues recovery of any conditional payments. CMS uses two contractors to help them do this: the Benefits Coordination & Recovery Center (BCRC) and the Commercial Repayment Center (CRC).

In terms of “how” CMS pursues recovery, the agency largely uses its Section 111 reporting process to help drive its recovery process, including which contractor it uses and which party it pursues as the debtor. Very generally, as more fully detailed in the author’s recent article, when an insurer reports “ORM” (Ongoing Responsibility for Medicals”) and/or a “TPOC” (Total Payment Obligation to the Claimant) through the Section 111 reporting process, CMS uses those reports to initiate recovery for conditional payments.

While a deep dive into CMS’s Section 111 reporting triggers is outside this article’s scope, ORM, in general, involves situations where an insurer accepts responsibility for a claimant’s injuries, which includes covering the claimant’s medical treatment.^[5] ORM reporting typically relates to workers’ compensation and no-fault claims.

When CMS receives an ORM report, CMS’s stated workflow is to initiate conditional payment recovery against the insurer using its CRC contractor.^[6]The CRC then utilizes the RRE’s Section 111 reporting data to identify medical treatment it believes is the insurer’s responsibility and seeks reimbursement against the insurer.^[7]The ORM trigger, and CRC initiated recovery, is the primary avenue for conditional payment recovery for CMS regarding fault claims.

In contrast, under the TPOC trigger, reporting is required regarding settlements, judgments, awards, or other payments with Medicare beneficiaries as specifically defined by CMS under its Section 111 guidelines.^[8]The TPOC reporting trigger has particular applicability in liability and workers’ compensation claims where insurers settle claims with Medicare beneficiaries, though the process would be the same (in the rare instance) if a no fault TPOC were to be reported to CMS.

When CMS receives a TPOC report, CMS’s stated workflow is to use that information to seek reimbursement from the claimant using its BCRC contractor.^[9]The BCRC searches Medicare’s system for any medical treatment the BCRC believes to be related to the claim and then seeks reimbursement from the claimant for any identified conditional payments.^[10] Thus, in the typical liability settlement, CMS pursues the claimant for reimbursement.

In terms of CMS’s rights, CMS has strong recovery rights against primary payers (and other parties) which could result in significant liability.^[11] By way of example, CMS can seek recovery from the claimant, primary plan, claimant’s attorney, and other parties when the primary plan has “demonstrated responsibility” as defined under the MSP.^[12] Failure to properly address and resolve Medicare recovery claims can expose an insurer to significant liability, including interest accrual, Treasury claims (including “offsets”), U.S. Department of Justice actions, “double damages,” and other potential recourses.

Medicare Advantage recovery differs from CMS’s process

How Medicare Advantage Plans (MAPs) pursue recovery claims is completely different from CMS’s process. When it comes to MAP recovery, CMS, its contractors (the CRC and BRC), and Treasury are not involved at all. Rather, parties must deal with the individual plan(s), as applicable. Unlike CMS’s recovery process, there is no standardized process in the MAP context, with each MAP plan handling recovery differently using their own internal recovery process. Some MAPs may also contract with third-party vendors to handle recovery on their behalf. Thus, MAP lien information must be obtained directly from the MAP (or its third-party agent, if applicable), as CMS does not provide this information. Likewise, all challenges and disputes must be initiated with the applicable plan(s), or their third-party vendor, as applicable.

In terms of MAP recovery rights, under specific MAP statutes and regulations, MAPs may, in part, “bill” or “charge” their enrollees or insurers for reimbursement.^[13]In addition, in some jurisdictions MAPs can also sue for “double damages” under the MSP’s private cause of action (PCA) statutes.^[14]For example, three United States Circuit Courts of Appeals have ruled that the MSP’s PCA statute applies to MAPs. Specifically, the Third, Eleventh, and Second Circuits have ruled that MAPs can sue insurers for “double damages” under the PCA statute.^[15]Of note, the 11^th and 2^nd Circuit Courts actually levied “double damages” against the defendant liability insurers as part of their rulings.^[16] In addition to the above U.S. Circuit Court decisions, several United States District Courts have also ruled that MAPs can bring “double damages” claims.^[17]

Medicare Part D recovery is similar to the MAP recovery process

The Part D recovery process is like MAP recovery in that the parties must deal directly with the Part D plan (or its third-party agent, if applicable) to obtain lien information and dispute any lien claims.

In terms of recovery, very generally, certain federal statutes and regulations reference that Part D plans have the same recovery rights as MAPs. For example, 42 U.S.C. § 1395w-102(4) states, in part, that the recovery rights afforded to MAPs “apply in the same manner” to Part D. Likewise, 42 CFR § 423.462 provides that the same “Medicare secondary payer procedures” that apply to MAPs under § 422.108 also apply to Part D plans.^[18]

While Part D plans have recovery rights, in the author’s experience, Part D plans, in general, have not been as active in pursuing reimbursement in comparison to MAPs and this author has not seen this type of litigation and judicial activity (at least thus far) regarding Part D recovery issues.^[19]

No-Fault cases – dealing with Medicare recovery claims

With a general sense of Medicare recovery claims established, we can now turn to the specific areas of focus when dealing with Medicare recovery and no-fault claims.

Some general points to consider in this area include:

Use the query to identify which claims have Medicare involvement.

Determining a claimant’s Medicare beneficiary status early in the life of a claim alerts an insurer to potential Medicare involvement in a no-fault case. Given Medicare’s broad, strong recovery rights, identifying Medicare involvement allows an insurer to get in front of Medicare recovery issues and avoid potential surprises.

Remember, there could be multiple Medicare lien claims.

It is important to remember that Medicare beneficiaries can switch their Medicare plans during annual open enrollment periods. Thus, it is possible that there could be multiple Medicare recovery actions that need to be addressed. As noted above, the Section 111 Query Process can be helpful here as it provides information regarding the claimant’s Medicare program enrollment. With this information, an insurer can identify which entities may have a recovery interest against a no-fault case.

Rolling recovery means Medicare may have multiple recovery cases.

Unlike liability cases, where Medicare’s recovery is based around TPOC, typically resulting in a single recovery demand once Medicare is notified of settlement, traditional Medicare’s recovery process for no fault cases is a “rolling” recovery process, which can result in multiple recovery claims throughout the life of the no-fault case. Functionally, this means that even if the CRC issues a demand against a no-fault case and that demand is resolved through appeal or payment, the CRC could later open a subsequent recovery claim and initiate the recovery process again if additional treatment is located.

This underscores the importance of tracking Medicare’s recovery claims to ensure they are being addressed and that demands do not slip through the cracks. Additionally, it is important that no fault insurers monitor their ORM status and promptly report ORM termination to mitigate the opening of additional Medicare recovery claims once a case meets one of the criteria for ORM termination.

Documentation is crucial for appeals.

In the author’s experience, it is not uncommon for no-fault policies to have relatively low limits, which can be quickly exhausted. If Medicare seeks reimbursement after a no-fault policy has been exhausted, or there are insufficient funds remaining under the policy to fully reimburse Medicare, then the insurer will need to alert Medicare to the exhaustion and dispute Medicare’s recovery on this basis.

Generally speaking, it is important to provide sufficient supporting documentation for such an appeal. For recovery initiated by the CRC, Medicare has indicated that a policy pay history documenting the dates of service, total billed amount, amount paid to provider, provider’s name, name of the recipient of payment, and the date the payment was processed is required to document proper exhaustion.^[20]

In the author’s experience, additional documentation may be required for situations where payment was made directly to a claimant or their attorney to reimburse the claimant for their out-of-pocket expenses. In those scenarios, it may be necessary to provide Medicare with documentation showing the specific expenses for which the claimant is being reimbursed.

While the above largely applies to recovery initiated by Medicare’s CRC, in the author’s experience similar documentation is often helpful in challenging recovery by a MAP or Part D plan.

Understand Medicare’s recovery process for claims involving multiple coverage types.

In the author’s experience, one common source of confusion arises in situations where a case involves both no fault and liability coverage, with an insurer potentially having ORM for the no-fault portion of the case and also settling the liability portion of the case with the claimant, resulting in a TPOC. In those scenarios it is possible for the CRC to initiate recovery against the insurer’s ORM on the no fault portion of the case, and for the BCRC to initiate recovery against the TPOC, resulting in multiple Medicare recovery claims arising against a single insurance claim. Given this, it is recommended to thoroughly review any Medicare recovery correspondence to determine which coverage type Medicare is seeking to recover against and which individual or entity is the debtor that Medicare is pursuing for reimbursement.

How Verisk Can Help

Verisk offers several different Medicare recovery services that can help you address CMS, Treasury, MAP, and Part D recovery claims. As part of our services, we also offer our popular CP Link^® program which provides a proactive approach to Medicare recovery claims that leverages your Section 111 data to initiate the conditional payment process. In general, CP Link helps speed up the conditional payment process by identifying potential conditional payment claims through Section 111 data, helps reduce adjuster time, and facilitates a holistic compliance approach to address conditional payment claims. By combining automation with our experienced team, we consistently deliver extraordinary savings for our customers. For example, in 2025, we saved our clients over $138 million in conditional payments and nearly $1.1 million in Treasury savings.

Questions?

Please do not hesitate to contact the author if you have any questions regarding CMS recovery claims, or Verisk’s Medicare conditional payment services, including CP Link.

[1] CMS’s Query Process is outlined in its Section 111 NGHP User Guide. See, CMS’s Section 111 NGHP User Guide (Version 8.4, April 13, 2026), Chapter IV, Chapter 8.

[2] In the Section 111 context, the party obligated to report under Section 111 is referred to as the “Responsible Reporting Entity (RRE).” Very generally, the RREs are insurers and self-insurers but could involve other risk-bearing entities such as self-insurance pools or assigned claims funds depending on the facts. See generally, CMS’s Section 111 NGHP User Guide, (Version 8.4, April 13, 2026), Chapter III, Chapter 6.

[3] See, CMS’s Section 111 NGHP User Guide (Version 8.4, April 13, 2026), Chapter IV, Chapter 8. Of note, as part of this process, if the full nine-digit SSN is not available, RREs can use a partial SSN by using spaces for the first four digits and entering the last five digits of the SSN. Id.

[4] CMS’s Section 111 NGHP User Guide (Version 8.4, April 13, 2026), Chapter IV, Chapter 8.

[5] “ORM” is the abbreviation for “on-going responsibility for medicals.” Very generally, CMS states that “the trigger for reporting ORM is the determination to assume ORM by the RRE, which is when the RRE learns, through normal due diligence, that the beneficiary has received (or is receiving) medical treatment related to the injury or illness sustained. Required reporting of ORM by the RRE does not necessarily require the RRE to have made payment for Medicare-covered items or services when the RRE assumed ORM, nor does a provider or supplier necessarily have to have submitted a claim for such items or services to the RRE for the RRE to assume ORM. The effective date for ORM is the DOI, regardless of when the beneficiary receives the first medical treatment or when ORM is reported.” See generally, CMS’s Section 111 NGHP User Guide (Version 8.4, April 13, 2026), Chapter III, Section 6.3.

[6] https://www.cms.gov/medicare/coordination-benefits-recovery/overview/reimbursing

[7] https://www.cms.gov/medicare/coordination-benefits-recovery/insurer-services/nghp-recovery

[8] “TPOC” is the abbreviation for “total payment obligation to the claimant.” Very generally, under CMS’s TPOC reporting trigger, reporting is required upon claim resolution (or partial resolution) through a settlement, judgment, award, or other payment for cases in which the claimant is/was a Medicare beneficiary as of the TPOC date and where medicals were claimed and/or released, or the settlement, judgment, award, or other payment has the effect of releasing medicals. Under CMS’s current thresholds, physical trauma-based liability, no-fault and workers’ compensation settlements greater than $750 are required to be reported under the Section 111 reporting process. The $750 threshold does not apply to settlements involving exposure, ingestion, or implantation cases. See generally, CMS’s Section 111 NGHP User Guide (Version 8.4, April 13, 2026), Chapter III and IV, Section 6.4.4.

[9] https://www.cms.gov/medicare/coordination-benefits-recovery/beneficiary-services/recovery-process

[10] Id.

[11] On this point, CMS’s recovery rights, in main part, are outlined in 42 U.S.C. § 1395y (b)(2)(B)(ii). This statutory section, states in full, as follows: “Subject to paragraph (9), a primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan’s responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means. If reimbursement is not made to the appropriate Trust Fund before the expiration of the 60-day period that begins on the date notice of, or information related to, a primary plan’s responsibility for such payment or other information is received, the Secretary may charge interest (beginning with the date on which the notice or other information is received) on the amount of the reimbursement until reimbursement is made (at a rate determined by the Secretary in accordance with regulations of the Secretary of the Treasury applicable to charges for late payments).”

[12] 42 U.S.C. § 1395y (b)(2)(B)(ii). See also 42 C.F.R. § 411. 24 (e) which states as follows: “Recovery from primary payers. CMS has a direct right of action to recover from any primary payer.” Id. In addition, 42 C.F.R. § 411. 24 (g) states as follows: “Recovery from parties that receive primary payments. CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.” Id.

Under the MSP, a “primary payer's responsibility for payment may be demonstrated by (1) A judgment; (2) A payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary payer or the primary payer's insured; or (3) By other means, including but not limited to a settlement, award, or contractual obligation.” 42 U.S.C. § 1395y (b)(2)(B)(ii).

Of note, under the MSP, the term “primary payer” is defined as follows: “Primary payer means, when used in the context in which Medicare is the secondary payer, any entity that is or was required or responsible to make payment with respect to an item or service (or any portion thereof) under a primary plan. These entities include, but are not limited to, insurers or self-insurers, third party administrators, and all employers that sponsor or contribute to group health plans or large group health plans.” 42 C.F.R. § 411. 21. See also, 42 C.F.R. § 411. 24 (g) which states: “Recovery from parties that receive primary payments. CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.” Id.

[13] The statutes on this point are 42 U.S.C. §1395mm(e)(4) and 42 U.S.C. § 1395w-22(a)(4) as follows:

42 U.S.C. §1395mm(e)(4) is entitled “Payments to health maintenance organizations and competitive medical plans” and states as follows: “Notwithstanding any other provision of law, the eligible organization may (in the case of the provision of services to a member enrolled under this section for an illness or injury for which the member is entitled to benefits under a workmen’s compensation law or plan of the United States or a State, under an automobile or liability insurance policy or plan, including a self-insured plan, or under no fault insurance) charge or authorize the provider of such services to charge, in accordance with the charges allowed under such law or policy— (A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or (B) such member to the extent that the member has been paid under such law, plan, or policy for such services.” Id.

Similar provisions are contained in 42 U.S.C. § 1395w-22(a)(4). This section is entitled “Organization as secondary payer” and provides that: “Notwithstanding any other provision of law, a Medicare+Choice organization [now called Medicare Advantage] may (in the case of the provision of items and services to an individual under a Medicare+Choice plan under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2) of this title) charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section— (A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or (B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services.” Id.

Additional regulations for consideration are 42 C.F.R. § 422.108(f) and 42 C.F.R. § 417.528 (b) as follows:

42 C.F.R. § 422.108(f) states: “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.” Meanwhile, 42 C.F.R. § 417.528 (b) provides that: “Charge to other insurers or the enrollee. If a Medicare enrollee receives from an HMO or CMP covered services that are also covered under State or Federal worker’s compensation, automobile medical, or any no-fault insurance, or any liability insurance policy or plan, including a self-insured plan, the HMO or CMP may charge, or authorize a provider that furnished the service to charge— (1) The insurance carrier, employer, or other entity that is liable to pay for these services; or (2) The Medicare enrollee, to the extent that he or she has been paid by the carrier, employer, or other entity.” Id.

Of note, these provisions have been interpreted, in general, as permitting MAPs to establish contractual recovery rights as part of their underlying insurance agreements but not creating an implied federal private cause of action right. See, e.g., Nott v. Aetna, 303 F.Supp.2d 565, 571-572 (D. Pa. 2004). In Care Choice HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003), the court opined that “[i]f an [Medicare] HMO chooses to include such a provision in its insurance policy, its remedy would be based on a standard insurance contract claim and not on any federal statutory right.” Id. at p. 790. Similarly, in Parra v. PacifiCare, 2011 WL 13119115 (D. Arizona 2011), the court indicated that the MAP statutes do not create a federal private cause of action right and do “no more that protect [a MAP’s] right to charge and/or bill a beneficiary for reimbursement, notwithstanding [any] state law or regulation to the contrary.” Id. at *4.

[14] The MSP’s private cause of action statute is codified at 42 U.S.C. 1395y(b)(3)(A) which states, in full, as follows: “There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).” Id.

[15] See, In re Avandia, 685 F.3d 353 (3rd Cir. 2012), Humana v. Western Heritage Insurance Co., 832 F.3d 1229 (11^th Cir. 2016), and Aetna Life Insurance Company v. Big Y Foods, Inc., 52 F.4^th 66 (2^nd Cir. 2022).

[16] Humana v. Western Heritage Insurance Co., 832 F.3d 1229 (11^th Cir. 2016), and Aetna Life Insurance Company v. Big Y Foods, Inc., 52 F.4^th 66 (2^nd Cir. 2022).

[17] On this point, he following United States District courts have ruled that MAPs can sue for “double damages:” California: MAO-MSO Recovery II, LLC v. Mercury Insurance, 2018 WL 3357493 (C.D. Calif. 2018); MAO-MSO Recovery II, LLC v. Farmers Insurance Exchange, 2018 WL 2106467 (C.D. Calif. 2018); Connecticut: Aetna v. Guerrera, 300 F.Supp.3d 367 (D. Conn 2018); Illinois: MAO-MSO Recovery II, LLC v. State Farm, 2018 WL 340021 (C.D. Ill. 2018); MSP Recovery Claims, Series 44 v. Zurich, 2023 WL 5227396 (N.D. Illinois 2023); Louisiana: Collins v. Wellcare Healthcare Plans, Inc., 73 F.Supp.3d 653 (E.D. La. 2014); Maryland: MAO-MSP Recovery II, LLC v. Government Employers Ins. Co., 2024 WL 2924063 (D. Maryland 2024); Massachusetts: MSP Recovery Claims Series LLC v. Plymouth Rock Assurance Corporation, 404 F.Supp.3d 470 (D. Massachusetts 2019); Ohio: MSP Recovery Claims, Series LLC v. Phoenix Insurance Company, 426 F.Supp. 3d 458 (N.D. Ohio, 2019); MSP Recovery Claims, Series LLC v. Grange Insurance Company, 2019 WL 6770729 (N.D. Ohio 2019); and MSP Recovery Claims, Series LLC v. Progressive Corporation, 2019 WL 5448356 (N.D. Ohio 2019); South Carolina: Humana Ins. Co. v. Bi-Lo, LLC, 2019 WL 4643582 (D. South Carolina 2019); Tennessee: Cariten Health Plan, Inc. v. Mid-Century Ins. Co., No.: 2015 WL 5449221(E.D. Tenn. 2015); Texas: Humana Ins. Co. v. Farmers Tex. Cnty. Mut. Ins. Co., 95 F.Supp.3d 983 (W.D. Tex. 2014) and Humana v. Shrader, 584 B.R. 658 (S.D. Tex. 2018); and Virginia: Humana Ins. Co. v. Paris Blank LLP, 187 F. Supp.3d 676 (E.D. Va. 2016).

[18] Further, under 42 CFR § 422.108, MAPs may seek reimbursement from claims payers and other parties in workers’ compensation, liability, and no-fault cases. This regulation further gives MAPs the same recovery rights as traditional Medicare under the MSP. In addition, CMS in a 2011 policy memo states, in part, that Part D plans “have the same MSP rights and responsibilities as Medicare Advantage Plans, including collection of mistaken primary payment from insurers, group health plans, employer sponsors, enrollees, and other entities.” See, CMS memo, Medicare Secondary Payment Subrogation Rights, Medicare Advantage Organizations and Prescription Drug Plan Sponsors (December 5, 2011).

It is also noted that in 2018, CMS added language to its Medicare Prescription Drug Benefit Manual including, in part, that “Part D sponsors will have the same responsibilities under MSP requirements as [Medicare Advantage] plans, including collection of mistaken primary payment from insurers, group health plans, employer sponsors, enrollees, and other entities; and the relationship between MSP rules and State laws. Part D sponsors must properly apply MSP requirements and regulations to their payments (e.g. working aged, worker’s compensation).” See, CMS’s Prescription Drug Manual, Chapter 14, Coordination of Benefits (Revised, September 17, 2018). In addition, CMS added, in part, the following guidance to Part D providers: “Part D sponsors are responsible for identifying and recovering any Coordination of Benefits (e.g. where a Part D sponsor paid for a claim and another payer should have paid), MSP related mistaken payments and submitting associated adjustments to CMS. Recovery of payments when the sponsor determines no payment at all should have been made or the amount paid was more than it should have been should be sought from the responsible other party. Sponsors should implement processes to handle payment resolution in these situations directly with the primary payer or in limited cases with the beneficiary … [a] claim for a drug that should be paid as MSP may not be submitted or paid as a primary claim by the Medicare plan.” Id. Of note, this updated language supplemented existing manual provisions regarding Part D secondary payer concepts which stated, in part, that “Part D sponsors will have the same responsibilities under MSP requirements as [Medicare Advantage] plans, including collection of mistaken primary payment from insurers, group health plans, employer sponsors, enrollees, and other entities; and the relationship between MSP rules and State laws. Part D sponsors must properly apply MSP requirements and regulations to their payments (e.g. working aged, worker’s compensation).” Id.

[19] In this regard, an interesting question is whether the courts would find that Part D plans also have “double damages” rights under the MSP’s private cause of action statute. To the authors’ knowledge, this precise issue has not yet been directly litigated, although the 3^rd Circuit as part of its decision in Avandia, finding that MAPs could sue insurers for double damages, indicated that its ruling would also apply to Part D recovery claims. See, In re Avandia, 685 F.3d 353, at n.20. The court in this endnote stated “Our decision here unquestionably results in cost savings for the Medicare Trust Fund because our holding on the meaning of the private cause of action will apply equally to private entities that provide prescription drug benefits pursuant to Medicare Part D. See 42 U.S.C § 1395w-151(b) (requiring that provisions relating to the MA program and MAOs be read to include part D plans). Because Part D prescription drug plans explicitly share gains and losses with the federal government, 42 U.S.C. § 1395w-115(e), the Medicare Trust Fund unquestionably loses money if these private entities recover less from primary payers.” Id.

[20] Non-Group Health Plan (NGHP) Applicable Plan Appeals Reference Guide, Version 1.1 (July 1, 2024), Section 4.1.1