CMS Pub. 100-16, ch. mc86c18b, § 200.1

Separate from its subrogation rights, the Federal Government has an independent right to

take legal action to recover payments from entities that are required or responsible to pay

benefits primary to Medicare, but fail to do so. The Federal Government may recover

double damages in this type of lawsuit pursuant to §1862(b)(2)(B)(ii) of the Act. Entities

that are required or responsible to pay primary to Medicare include:

• A group health plan, including insurers, employers, and third party administrators

of such plans;

• A LGHP, including insurers, employers, and third party administrators of such

plans;

• Any liability insurance policy or plan, including a self-insured plan;

• A WC plan; and

• An automobile or nonautomobile no-fault insurance plan.

The Medicare HCPP should refer any case in which an entity is required or responsible to

make primary payment, but refuses to do so, to the CMS RO servicing the HCPP's area.

The HCPP should include, in addition to the beneficiary's name, address, and SSN or

HICN, the formal name and address of the insurer or HCPP; the employee brochure that

describes health benefits and coverage; the name and address of the entity required or

responsible for making payment on behalf of the plan (e.g., the employer, an insurer or a

third party administrator (TPA)); a copy of the employer's agreement with the TPA; the

name of the sponsoring or contributing employer or employee organization; the

provider's name, address, and identification number; the specific amount of mistaken

primary benefits Medicare paid; the specific date(s) of service; the specific procedure or

diagnosis code(s) the MSP type (e.g., ESRD or working aged); and a full explanation of

the reasons for the referral. The CMS RO reviews the case file for completeness and

obtains any needed additional information. When the file is complete, the CMS RO

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refers the case to CMS CO. The CMS CO considers possible legal action to collect

double damages from that entity.

The government's right to sue and collect double damages is effective for items and

services furnished on or after December 20, 1989, under all MSP provisions except the

MSP for the disabled provision. The government's right to sue and collect double

damages under the MSP for the disabled provision, is effective for items and services

furnished on or after January 1, 1987.