It is never a good day when an insurer receives notice of a collection action from the United States Department of Treasury (Treasury) regarding a Medicare conditional payment claim – or worse yet – learns that Treasury has taken an offset to satisfy an outstanding conditional payment debt. No matter how a Treasury action arises, this often signals that something has gone wrong with an insurer’s Medicare claims handling process.
In the bigger picture, the issue of Treasury claims is becoming more pressing as, from the author’s experience, many insurers have experienced an increase in Treasury recovery actions over the past few years. This observation appears to align with the findings in a recent report from the Centers for Medicare and Medicaid Services (CMS) which found, in part, that Treasury collections jumped from $55 million in 2020 to $82 million in 2021, a 47% increase. With Treasury collections on the rise – and real dollars at risk – it is critical that insurers understand the challenges and build strategies to reduce risk.
In this article, the author provides a general overview of Treasury collection actions in relation to CMS’s non-group health plan recovery process as follows:
Which Medicare recovery claims are subject to Treasury actions?
Treasury actions relate to CMS conditional payment recovery claims regarding Traditional Medicare (Medicare Part A and B claims). In general, CMS handles conditional payment recovery regarding Part A and B claims and they use two contractors as part of this process: the Benefits Coordination and Recovery Center (BCRC) and the Commercial Recovery Center (CRC). As a refresher, CMS has strong and broad recovery rights under the Medicare Secondary Payer (MSP) statute. For example, Medicare’s rights include, but are not necessarily limited to, the right to seek recovery from the party who makes and receives payment, the ability to sue insurers for “double damages,” a direct recovery right of recovery, as well as, subrogation rights. In addition, Medicare can refer delinquent debts to the United States Department of Treasury for collection.
How do Treasury claims arise?
In general, Treasury claims arise when a CMS conditional payment demand is not timely paid or resolved and becomes delinquent. When CMS issues a conditional payment demand, the debtor has 60 days to issue payment. If payment is not issued within the 60-day period, then the debt is considered delinquent by CMS. Pursuant to the Debt Collection Improvement Act of 1996, CMS is required to refer eligible debts which are more than 120 days delinquent to Treasury for collections. Of note, CMS can refer debt to Treasury prior to being 120 days delinquent if CMS has notified the debtor of CMS’s intention to refer the debt to Treasury. As part of CMS’ recovery practices, it is important to note that while it is Medicare’s stated policy that a conditional payment debt will not be referred to Treasury if the debt is under active administrative appeal, in the author’s experience it is not uncommon to see debts referred to Treasury after an unfavorable redetermination or reconsideration decision as part of CMS’s administrative appeals process – despite the fact that the debtor may still be within the time frame to file an appeal to the next level of the appeal process.
Who are the players?
Treasury often uses private collection agencies (PCAs) to assist in pursuing delinquent conditional payment debts. Specifically, when a CMS conditional payment debt is referred to Treasury for collection, it is sent to the Treasury’s Bureau of the Fiscal Service. From there, the Bureau of the Fiscal Service may then refer a debt to one of Treasury’s several different PCAs. Currently, Treasury contracts with five PCAs to handle collections: The CBE Group, Inc.; ConServe, Inc.; Pioneer Credit Recovery, Inc.; Coast Professional, Inc.; and Transworld Systems, Inc.
How does Treasury pursue collection?
Treasury has several different paths to pursue collection on delinquent Medicare conditional payment demands. Of note, these paths are not mutually exclusive and can occur concurrently. Additionally, regardless of which path Treasury elects to pursue, it is important to keep in mind that interest continues to accrue on the underlying debt.
There are three main paths Treasury uses to pursue collection including: Cross-Servicing (PCA); Treasury off-set program (TOP); and Treasury offsets as part of the state reciprocal program which are outlined, in general, as follows:
- Cross-Servicing and Private Collection Agencies (PCAs)
Under this recovery method, Treasury’s Cross Servicing division begins the collection process upon receipt of a delinquent Medicare conditional payment debt. From the author’s experience, the Bureau of the Fiscal Service will typically issue an initial demand letter notifying a debtor that a delinquent Medicare conditional payment debt has been referred to Treasury for collections and offering payment instructions. If the debt remains unpaid, Treasury may refer the debt to one of the private collection agencies (PCAs) noted above. PCAs will seek recovery by making phone calls to the debtor and sending collection letters to the debtor.
- Treasury Offset Program (TOP)
Another collection method utilized by Treasury is referred to as the Treasury Offset Program (TOP) which is operated by the Bureau of Fiscal Service. The TOP is described by Treasury as a “fully-automated, centralized offset program that intercepts federal and state payments to collect delinquent debts owed to federal and state agencies.” In many respects the TOP program provides Treasury with a direct way to intercept federal payments to satisfy delinquent debts, including delinquent conditional payment debts. Of note, the TOP program has a direct connection to Section 111 reporting as Treasury uses certain information from the Section 111 process to initiate its offset activities. Specifically, as part of the Section 111 reporting, responsible reporting entities (RREs) submit their Tax Identification Number (TIN) to Medicare. When Medicare issues a conditional payment demand to an RRE, that conditional payment demand is associated with the RRE’s TIN. Similarly, when Medicare issues a conditional payment demand to a Medicare beneficiary, the Medicare beneficiary’s Social Security Number (SSN) is associated with that demand. If these demands become delinquent and are referred to Treasury for collection, Medicare provides the RRE’s TIN (for cases where the RRE is Medicare’s identified debtor) or the Medicare beneficiary’s SSN (for cases where the Medicare beneficiary is Medicare’s identified debtor) to Treasury.
With this information, TOP then uses the TIN or SSN linked to the debt to identify federal or state payments to the identified debtor that may be eligible for offset. Outgoing federal payments are reviewed against the TOP database to determine if the individual or entity receiving payment has a debt in the TOP database. If there is a debt in the TOP database where the entity or individual receiving payment’s name and TIN/SSN match the debt and the payment is eligible for offset, the payment will be offset to satisfy the debt.
It is noted that while the TOP program is a powerful tool in Treasury’s recovery arsenal, not all federal payments are eligible for offset and there are caps on the percentage of some types of federal payments that may be offset. For instance, an offset applied to an individual’s monthly Social Security or Railroad Retirement benefits is capped at 15% of the monthly benefits, or the amount by which the monthly benefit exceeds $750, whichever is lesser.
- State Reciprocal Program (SRP)
Treasury’s TOP also has a state component referred to as the State Reciprocal Program (SRP) whereby states can enter into agreements with Treasury where TOP may offset federal payments to satisfy state debts and states may offset payments for delinquent debts owed to the federal government. This means that if an individual or entity has a delinquent Medicare conditional payment debt that has been referred to Treasury, a payment from a state may be offset to satisfy that debt if the state has enrolled in the SRP.
Can Treasury claims be disputed?
In evaluating this question, it is first important to recognize, as outlined above, that since Medicare conditional payment demands are not referred to Treasury until they are 120 days delinquent, it is very likely that any Medicare demand subject to Treasury collection is beyond the timeframe for a Medicare appeal under the Medicare administrative appeals process. Further, it is noted that Treasury does not have a specific dispute or appeals process. Accordingly, these facts make it difficult to get CMS to review a dispute of a Treasury claim. However, in the author’s experience, he has had success in getting Treasury to accept a dispute in certain situations on a case-by-case basis. In these situations, it is noted that it is not Treasury which actually reviews the dispute; rather, Treasury forwards the dispute back to CMS for handling. It is also important to note that while filing a dispute with Treasury should cease active collection efforts while the dispute is pending, a dispute does not stop interest accrual or potential offset under TOP and does not return the debt to Medicare.
What steps can insurers take to minimize Treasury claims?
As noted at the beginning of this article, receipt of a Treasury claim often indicates that something has gone wrong as part of an insurer’s Medicare claims handling and may raise red flags concerning larger best practice protocols. Treasury, as outlined above, has broad recovery tools, including the Treasury Offset Program, and presents real challenges and significant liability. While it may be difficult to eliminate all Treasury claims, insurers can certainly take steps to significantly reduce potential Treasury claims in the first place.
Toward this goal, there are several strategies insurers may wish to consider as follows:
First, building proactive compliance approaches to address and resolve Medicare conditional payment claims in a timely manner is a key in avoiding potential Treasury claims in the first place. In general, this involves ensuring CMS correspondence is identified, reviewed, responded to, and resolved in a timely manner. This could involve the use of MSPRP Open Debt Reports, Section 111 data, Recovery Agents, or other means to proactively identify Medicare conditional payment recovery cases to ensure they are timely resolved.
Second, understanding how CMS’s recovery process operates is critical. For example, in situations where an insurer has accepted “on-going responsibility for medicals (ORM),” which typically involves workers’ compensation, no-fault, and med-pay claims, CMS views the insurer as the debtor and uses the CRC to pursue recovery against the insurer based off the ORM report and pursues reimbursement prior to claim settlement. In general, as part of this process, the CRC issues a conditional payment notice (CPN) which advises the insurer of certain actions it needs to take (i.e. disputing any charges it feels are unrelated or inappropriate) within 30 days of the date on the CPN, or the CRC will automatically issue a reimbursement demand letter. Thus, it is imperative that insurers respond timely to CPNs. In general, as referenced above, once a demand is issued, the insurer has 60 days to issue payment before interest accrues, 120 days to file an appeal, and approximately 180 days before a debt is eligible for referral to Treasury (60 days after the demand is issued for the debt to become delinquent and then 120 additional days of delinquency to be eligible for Treasury referral). Given this, it is essential to carefully review all timelines referenced in correspondence from CMS or its contractors and respond to Medicare demands in a timely manner. From another angle, in situations where an insurer resolves a claim via settlement, judgement, or award, and consequently reports a “total payment obligation to claimant (TPOC)” to Medicare, Medicare’s stated process is to use the BCRC to pursue recovery against the claimant subsequent to settlement. In these situations, the parties should be aware that Medicare may issue a demand seeking reimbursement from the claimant. If not resolved, this debt could be referred to Treasury for collection, potentially against the claimant’s Social Security benefits.
Third, promptly analyzing, reviewing, and, if applicable, disputing Medicare conditional payment claims is important. If payment is warranted, then payment should be made promptly and should be directed to Medicare at the correct address. Conversely, if an appeal is warranted, it should be filed within the appeal deadline. If that appeal is unsuccessful, subsequent appeals to the next level(s) of CMS’s appeal process should also be timely filed to minimize a Treasury referral.
When the dust settles, Treasury claims present significant potential liability for insurers and underscores the importance of having practices in place to address and resolve CMS conditional payments in a timely manner. Along these lines, insurers may wish to consider reviewing their practices to help prevent Treasury claims going forward. Toward that goal, please note below how Verisk’s services can help and two upcoming webinars addressing Treasury claims. Of course, please do not hesitate to contact the author if you have any questions.
How Verisk can help!
Verisk can help you take the right steps to avoid U.S. Treasury Department collections. For example, our Treasury Service offers proactive Treasury monitoring through the Government to Government (G2G) program to help with timely notification of Treasury Debts and Offsets. We can also help you address Treasury claims on a case-by-case referral basis. Our experienced team delivers results --- in 2022, we helped our customers save over $6 million in Treasury disputes and in 2021 secured over $330,000 in client refunds intercepted as part of Treasury offsets!
In addition, we offer several CMS conditional payment services which can help you minimize Treasury cases in the first place. For example, CP Link® is our proactive and programmatic solution that automates CMS conditional payment identification, dispute, and resolution directly from Section 111 data for holistic compliance. We also offer our standard Medicare conditional payment service to address CMS recovery claims on a case by case basis. These services have consistently provided significant cost savings for our clients. For example, in 2021, we saved our clients approximately $100 million in conditional payment disputes and reduced 60.35% of conditional payment dispute submissions to zero dollars. Our CP Link solution saved our clients over $14 million in 2020 and approximately $12.6 million in 2021. Finally, we can also help build practical claims protocols to address each of the Medicare compliance areas noted above and provide training for management and staff.
Learn more about Treasury claims – join our upcoming webinars!
Take your knowledge about Treasury claims to the next level --- join our forthcoming webinars!
On March 13, 2023, the Verisk panel will expand upon the topics outlined in this article and break down steps you can take to reduce Treasury claims!
Then, on April 20, 2023, we will focus on how Verisk’s services can help you tackle Treasury claims (including our Government to Government (G2G) service), along with options to help you address CMS conditional payments to help you prevent Treasury claims in the first place!
 The Medicare Secondary Payer Commercial Repayment Center in Fiscal Year 2021 (October 2022), Section 4.3, p.8.The 2020 figure is taken from CMS’s Report to Congress Medicare Secondary Payer Commercial Repayment Center in Fiscal Year 2020, p. 8.
 As used in this article, “non-group health plans” to include liability insurance (including self-insurance), no-fault insurance, and workers’ compensation as defined by CMS.See e.g., CMS’s NGHP Section 111 NGHP User Guide (Version 6.9, October 3, 2022), Chapter I, Chapter II, p.2-2 and Chapter 4, p. 4-1 to 4-3.See also, https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Non-Group-Health-Plan-Recovery
 The term “conditional payment” is defined in the Code of Federal Regulations as follows: “Conditional payment means a Medicare payment for services for which another payer is responsible, made either on the bases set forth in subparts C through H of this part, or because the intermediary or carrier did not know that the other coverage existed.” 42 C.F.R. § 411.21. CMS on its website defines “conditional payment” in general as follows: “A conditional payment is a payment Medicare makes for services another payer may be responsible for. The payment is ‘conditional’ because it must be repaid to Medicare when a beneficiary receives a settlement, judgment, award, or other payment from an NGHP. When the BCRC learns of an NGHP case, they will gather information about any related conditional payments Medicare made and request repayment.” https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Non-Group-Health-Plan-Recovery
Medicare Part A and B comprise what is known as “original Medicare” or “traditional Medicare” and are Medicare benefits provided to beneficiaries by the federal government as administered by the Centers for Medicare and Medicaid Services.Very generally, Part A provides “hospital insurance” and covers such items as inpatient care, skilled nursing facility care, hospice care, and home health care; while Part B provides “medical insurance” and helps covers such items as doctor services, outpatient care, home health care, durable medical equipment, and certain preventive services.See, Medicare & You 2023, The official U.S. government Medicare Handbook, Department of Health and Human Services, p. 9-11.
 For a general overview of CMS’s non-group health plan recovery process, see https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Non-Group-Health-Plan-Recovery
 42 U.S.C. § 1395y(b)(2)(ii).
 42 U.S.C. § 1395y(b)(2)(iii).
 See e.g., 42 U.S.C. § 1395y(b)(2)(iii) and 42 CFR § 411.24 (e).
 42 U.S.C. § 1395y(b)(2)(iv).
As part of the information contain on this page, CMS states as follows:
Referral of debt to the Department of Treasury
You will be notified of a delinquency through an Intent to Refer letter (a notice of the BCRC’s intent to refer the debt to the Department of Treasury Offset Program for further collection activities). The Intent to Refer letter is sent day 90 (after demand letter) if full payment or Valid Documented Defense is not received.If full repayment or Valid Documented Defense is not received within 60 days of Intent to Refer Letter (150 days of demand letter), debt is referred to Treasury once any outstanding correspondence is worked by the BCRC. Note: CMS may also refer debts to the Department of Justice for legal action if it determines that the required payment or a properly documented defense has not been provided. The law authorizes the Federal government to collect double damages from any party that is responsible for resolving the matter but which fails to do so.
See also, Medicare Secondary Payer (MSP) Manual, Chapter 7, 70.2: “The DATA Act which amended the DCIA requires Federal agencies to refer eligible delinquent debt to a Treasury designated Debt Collection Center (DCC) for cross servicing and/or Treasury Offset Program (TOP). The CMS is mandated to refer all eligible delinquent debt, over 120 calendar days delinquent, to Treasury for cross-servicing.”
MSP Manual, Chapter 7, Section 70.4.
 The Debt Collection Improvement Act of 1996 is codified at 31 U.S.C. 3701, et. seq.
MSP Manual, Chapter 7, Section 70.2.
 See e.g., CMS’s recent report The Medicare Secondary Payer Commercial Repayment Center in Fiscal Year 2021 (October 2022) in which CMS states, in part, “[i]f an NGHP requests an appeal, the debt will not be referred to the Department of the Treasury while the appeal is being processed, but interest will continue to accrue.” Id.See also, MSP Manual, Chapter 7, Section 70.6 which states, in part: “Debts excluded from referral include: (a) Debts in appeal (pending at any level)”
 While a complete review of CMS’s administrative appeals process is beyond the scope of this article, this process was recently summarized by one court as follows:
This process includes four levels of review before such a challenge is entitled to judicial review in federal district court.First, the insurer may seek reconsideration of Medicare’s decision through a process called “redetermination.” 42 C.F.R. § 405.940. “In conducting a redetermination, the contractor reviews the evidence and findings upon which the initial determination was based, and any additional evidence the parties submit or the contractor obtains on its own.” 42 C.F.R. § 405.948. Second, if the insurer is dissatisfied with the result of the redetermination, it can seek reconsideration of the contractor’s determination through a separate qualified independent contractor. 42 C.F.R. § 405.960. At the reconsideration stage, “a party should present evidence and allegations of fact or law related to the issue in dispute and explain why it disagrees with the initial determination, including the redetermination.” 42 C.F.R. 405.966. Third, if the insurer is not satisfied with the outcome of the reconsideration, it may request a hearing before an Administrative Law Judge (“ALJ”). 42 C.F.R. § 405.1000. Fourth, if the insurer is not satisfied with the ALJ’s decision, it can request that the Medicare Appeals Council (the “Council”) review that decision. 42 C.F.R. § 405.1100. Only after the Council renders a decision can the insurer seek review by the federal courts. 42 C.F.R. § 405.1136. North Carolina Insurance Guaranty Association v. Becerra, 2022 WL 17661085, at *2.
By way of another example, in a recent CMS report, CMS describes the administrative appeals process as follows:
An identified NGHP debtor has 120 days from receipt of the Demand letter to file an appeal. Pursuant to section 1862(b)(2)(B)(viii) of the Act, NGHP entities from which the CRC recovers conditional payments were granted formal administrative appeal rights as of April 2015. The basis of the appeal may be the existence (the debtor did not actually have primary payment responsibility) or the amount (the specific responsibility for some or all the conditional payments) of the debt. The CRC processes the first-level appeal, called a request for redetermination. The identified debtor must provide documentation to support its request which, if successful, results in an adjustment of the debt. If the appeal is unsuccessful, the identified debtor may request a higher-level appeal. The higher levels of appeal are reconsideration by the CMS Qualified Independent Contractor, a hearing by an Administrative Law Judge within the Office of Medicare Hearings and Appeals, and review by the Departmental Appeals Board’s Medicare Appeals Council. If an NGHP requests an appeal, the debt will not be referred to the Department of the Treasury while the appeal is being processed, but interest will continue to accrue. See, The Medicare Secondary Payer Commercial Repayment Center in Fiscal Year 2021 (October 2022) at p.7.
Another CMS resource providing information on non-group health plan appeal rights can be viewed here. https://www.cms.gov/medicare/coordination-of-benefits-and-recovery/insurerservices/downloads/appeal-rights-for-applicable-plans.pdf
 See, n. 16.
31 CFR § 285.12 (c) (5).
 See, https://fiscal.treasury.gov/cross-servicing/private-collection-agencies.html, see also 31 U.S.C.A. § 3718.
 31 U.S. Code § 3717.
 31 CFR § 285.12 (c) (5).
 31 CFR § 285.4 (e) (1).
 31 CFR § 285.6(d) (2)
 31 CFR § 285.6(d) (2)
Specifically, one example that comes to mind is where a Treasury claim arises despite an insurer otherwise timely addressing a Medicare conditional payment claim in situation where the adjuster forgot to send Medicare the reimbursement check, thereby causing the debt to become delinquent and referred to Treasury.
 Very generally, ORM involves situations where the RRE has made a determination to assume responsibility to pay, on an ongoing basis, the claimant’s medicals associated with the claim. CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.9, October 3, 2022), Chapter 6, section 6.3.As part of its ORM definition, CMS explains that “[i]f an RRE has assumed ORM, the RRE is reimbursing a provider, or the injured party, for specific medical procedures, treatment, services, or devices (doctor’s visit, surgery, ambulance transport, etc.). These medicals are often being paid by the RRE as they are submitted by a provider or injured party.Id. Of note, CMS states that “the trigger for reporting ORM is the assumption of ORM by the RRE—when the RRE has made a determination to assume ORM or is otherwise required to assume ORM— not when (or after) the first payment for medicals under ORM has actually been made. Medical payments do not actually have to be paid for ORM reporting to be required.”Id. The ORM trigger is particularly applicable in workers’ compensation, no-fault, and med-pay cases as it is common for these insurers to provide treatment for the claimant’s injuries or conditions.
 See generally, information contained in CMS’s website: https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Reimbursing-Medicare/Reimbursing-Medicare-On this point, CMS describes this aspect of its process on its website, in part,as follows:“In general, CMS issues the demand letter directly to the Medicare beneficiary when the beneficiary has obtained a settlement, judgment, award or other payment, the liability insurer (including a self-insured entity), no-fault insurer, or workers’ compensation (WC) entity when that insurer or WC entity has ongoing responsibility for medicals (ORM).”In addition, CMS noted that “[f]or ORM, there may be multiple recoveries to account for the period of ORM, which means that CMS may issue more than one demand letter.”
 42 CFR § 411.24 (m) (2) (i)
 See, e.g. https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Reimbursing-Medicare/Reimbursing-Medicare-#:~:text=The%20appeal%20must%20be%20filed,incorrect%20with%20applicable%20supporting%20documentation.See also, The Medicare Secondary Payer Commercial Repayment Center in Fiscal Year 2021 (October 2022) at p.7 and 42 CFR § 405.942 (a).
 As a debt is considered delinquent 60 days after the demand is issued (MSP Manual, Chapter 7, Section 70.4), and then after 120 days of delinquency the debt is eligible for referral to Treasury (31 CFR § 285.12 (c) (2)), unresolved CMS demands are typically eligible for referral to Treasury approximately 180 days after the demand is issued.
Very generally, the TPOC reporting trigger refers to the dollar amount of a settlement, judgment, award, or other payment, in addition to or apart from ORM. CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.9, October 3, 2022), Chapter 6, section 6.4. In general, CMS describes TPOC as a “one-time” or “lump sum” payment intended to resolve or partially resolve a claim. Id.In general, a TPOC is the dollar amount paid to, or on behalf of, the claimant in relation to a settlement, judgment, award, or other payment. Id.TPOC reporting is applicable regardless of whether or not there is an admission or determination of liability. Id. CMS’s Section 111 NGHP User Guide, Chapter III (Version 6.4, June 11, 2021), Chapter 6, section 6.5.1.In addition, reporting under the TPOC trigger is applicable regardless of any allocation made by the parties or determination by the court. Id.
 31 U.S. Code § 3716 (c)(3)(A)(i)(I).