The Medicare Secondary Payer Act (MSP) places certain responsibilities on insurers, employer health plans,
and healthcare providers. Non-compliance
with the MSP can result in monetary penalties and government enforcement action.
Currently, the MSP is garnering attention as
an enforcement tool under the False Claims
Act (FCA).1 This article gives a general overview of the MSP, discusses requirements for
compliance, describes recent MSP enforcement
actions under the False Claims Act (FCA),
and gives some key takeaways to reduce
The Medicare Secondary Payer Act basics
The MSP affects providers, employer-
sponsored group health plans (GHPs), liability
and no-fault insurers, workers’
compensation funds and plans (col-
lectively, non-group health plans, or
NGHPs), and Medicare beneficiaries.
Generally, the MSP:
· Requires that Medicare be a
secondary payer if a beneficiary
carries certain types of employer
sponsored health plans; 2
· Prohibits the Centers for Medicare
and Medicaid Services (CMS)
from making payments for
Medicare-covered services if
payment has been made, or can
reasonably be expected to be
made, by a another payer; 3 and
· Allows CMS to make “conditional
payments” to the beneficiary if
there is a delay in reimbursement from another entity for a
covered service. 4
Notably, Congress also enacted a
parallel MSP provision that applies to
state Medicaid plans. 5 Special rules
by Gary W. Herschman, Melissa L. Jampol, and Tristan A. Potter‑Strait
Secondary Payer compliance
and False Claims Act liability
» The Supreme Court’s recent decision in Escobar expands the potential for Medicare Secondary Payer Act (MSP) enforcement
through the False Claims Act.
» The MSP impacts healthcare providers, insurers, employers, beneficiaries, and other parties.
» Medicare requires timely reimbursement of conditional payments.
» Non-compliance with MSP requirements can result in double damages.
» Providers need appropriate internal controls to monitor potential overpayments in a timely manner to avoid potential exposure
under the MSP and FCA.
Gary W. Herschman ( email@example.com) and Melissa L. Jampol
( firstname.lastname@example.org) are both Members of the Firm in the Health Care
and Life Sciences practice, in the Newark, NJ and New York offices of
Epstein Becker Green. Tristan A. Potter-Strait ( email@example.com)
is an Associate in the Health Care and Life Sciences practice in the Newark
office of Epstein Becker Green.