Medicare Advantage Plans and Medicare Secondary Payer (Part 4)

Rafael Gonzalez, Esq. Cattie & Gonzalez, PLLC

If you have been paying attention to Medicare Secondary Payer issues over the last decade, then you know that Medicare Advantage reimbursement of conditional payments has been and continues to be a significant issue for primary payers in liability, no-fault, and workers compensation cases. At one point, federal courts had determined that Medicare Advantage plans were not entitled to use the Medicare Secondary Payer Act to seek reimbursement of conditional payments, but had to instead seek such recoveries at the state level based on contractual language found within each policy. That all changed in 2012 when the United States Court of Appeals for the 3rd?Circuit ruled that Medicare Advantage plans were in fact allowed to use the MSP Act to seek reimbursement of conditional payments, including seeking double damages when primary payers refused to pay back such conditional payments forcing the Advantage plan to seek legal remedy in court.

Fast forward a decade later and today Medicare Advantage conditional payments are front and center, or should be, in the MSP compliance program of every primary payer in the country. With numerous United States District Courts and several United States Court of Appeals agreeing, and with the PAID Act becoming law in December 2020, and thereafter becoming effective in December 2021, there is no longer a void in the identification of Advantage plans that may have made payments related to the liability, no-fault, or workers compensation claim, entitling them to reimbursement pursuant to the MSP Act.

Perhaps not as top of mind for most primary payers, but certainly a concern for those of us who work with MSP issues on a daily basis, is the extension of supplemental benefits or “extra benefits” such as vision, fitness, telehealth, hearing or dental benefits to the items covered by Advantage plans that are generally not available in the traditional Medicare program. As Medicare Advantage plans continue to increase their offerings to include meals, transportation, acupuncture, chiropractic, in-home support, and enrollee caregiver support services, will these extended benefits make their way to the traditional Medicare program and become reimbursable conditional payments and an expected component of the Medicare Set Aside program when taking Medicare’s future interests into consideration when settling future medical needs associated with a liability, no-fault, or workers compensation claim?

I have been talking and writing about it for more than 20 years- the privatization of Medicare. Twenty years ago, it seemed an impossible task, but over the last decade, Medicare Advantage, the private plan alternative to traditional Medicare, has taken on a more prominent role in the Medicare program. In 2022, more than 28 million Medicare beneficiaries were enrolled in a Medicare Advantage plan, nearly half of the total Medicare population. How did this happen, and why is it still going on? Why would half of the Medicare population bypass the traditional Medicare system and instead go to private group health insurance companies to obtain their Medicare coverage?

Over the next several weeks, I will be discussing various components of why this phenomenon has occurred and is predicted to continue for the foreseeable future. As always, I use Kaiser Family Foundation (KFF) studies, analysis, statistics, research, and published articles as my source for all numbers mentioned and discussed throughout. Today we focus on the varied number of firms offering Medicare Advantage plans throughout the country, the multiple plans offered by these entities in the same geographic region, and firms entering and exiting the market.

Number of Firms Offering Advantage Plans

In 2023, the average Medicare beneficiary is able to choose from plans offered by 9 firms, the same number as in 2022. Despite most beneficiaries having access to plans operated by several different firms, enrollment is concentrated in plans operated by UnitedHealthcare and Humana, which together accounted for 46% of the Medicare Advantage enrollment?in 2023.

Four in ten beneficiaries (40%), in 300 counties around the country, were able to choose from plans offered by 10 or more firms or other sponsors. Sixteen firms are offering Medicare Advantage plans in Maricopa, Arizona, and 15 firms are offering Medicare Advantage plans in four counties: Pinal and Pima counties in Arizona, and Miami-Dade and Broward counties in Florida. In contrast, 3% of beneficiaries live in a county where three or fewer firms offer Medicare Advantage plans (475 counties). Further, in 85 counties, most of which are rural counties with relatively few Medicare beneficiaries (less than 1% of total), only one firm will offer Medicare Advantage plans in 2023.

Availability of Advantage Plans by Firm and County?

UnitedHealthcare and Humana, the two firms with the most Medicare Advantage enrollees in 2022, had large footprints across the country, offering plans in most counties. Humana is offering plans in 89 percent of counties and UnitedHealthcare is offering plans in 84 percent of counties in 2023, roughly the same as in 2022. About 9 in 10 (92%) Medicare beneficiaries have access to at least one Humana plan and 95 percent have access to at least one UnitedHealthcare plan.

Humana is offering plans in 2,860 counties in 2023, an increase of 123 counties from 2022, while UnitedHealthcare is offering plans in 2,709 counties in 2023, an increase of 332 from 2022. Blue Cross Blue Shield Affiliates are offering plans in 2,466 counties in 2023, an increase of 297 plans from 2022. CVS Health is offering plans in 1,978 counties, an increase of 138 counties since 2022; Centene is offering plans in 1,739 counties, an increase of 214 counties; and Cigna is offering plans in 581 counties, an increase of 104 counties. Kaiser Permanente is offering plans in 116 counties, the same as in 2022.

Multiple Plan Offerings by Firms in the Same County?

Many Medicare Advantage firms are also offering more than one plan option in each county. In 1,136 counties (accounting for 50% of beneficiaries), at least one firm is offering 10 or more plans for individual enrollment. For example, in Bucks and Delaware counties in Pennsylvania, four firms are offering 10 or more plans (Humana, UnitedHealthcare, Blue Cross Blue Shield Affiliates, and CVS Health). In 137 counties, two firms are offering 10 or more plans, and in 63 counties, three firms are offering 10 or more plans.

Blue Cross Blue Shield Affiliates are offering the most plan options in a county, with 18 different plan options in seven counties. Humana is offering the next highest number of plan choices with 16 Medicare Advantage plans available in six counties, followed by CVS, which is offering 13 plan options in nine counties. Centene is offering 12 plans options in seven counties and United Healthcare is offering 11 plan options in three counties.

Medicare Advantage Market Entrants and Exits

In 2023, 8 firms entered the market for the first time in 2023, collectively accounting for about 6 percent of the growth in the number of plans available for general enrollment and about 5 percent of the growth in Special Needs Plans (SNPs). Five new entrants are offering HMOs available for individual enrollment. Five of the new entrants are offering SNPs; two firms are offering D-SNPs for people dually eligible for Medicare and Medicaid, two firms are offering a C-SNP for people with select chronic conditions, and one firm is offering an I-SNP.

Two of the new firm entrants are offering plans in California, and the remainder are offering plans in Arizona, Connecticut, Iowa, Idaho, Massachusetts, and Missouri. Eight firms that previously participated in the Medicare Advantage market are not offering plans in 2023. Two of the firms had very low enrollment in 2022, while six firms had no enrollment in 2022, including one that was sanctioned in April 2021 and had to immediately suspend enrollment. Three of the eight exiting firms offered plans in California.

About Rafael Gonzalez?

Rafael earned his Bachelors of Science degree from the University of Florida, and his Jurisprudence Doctorate degree from the Florida State University.?

Rafael has over 35 years experience in the legal and insurance industries. He is currently a partner in Cattie & Gonzalez, PLLC, a national law firm serving clients in all 50 states, focused on Medicare and Medicaid secondary payer law and compliance in auto, bodily injury, liability, mass tort, medical malpractice, nursing home, no-fault, products, workers compensation, and wrongful death claims and litigated cases.?

Rafael writes and speaks about workers compensation, social security, medicare, medicaid, marketplace, mandatory insurer reporting, conditional payments resolution, set aside allocations, msa and snt administration, social determinants of health, and diversity, equity, and inclusion throughout the country.?

Rafael can be reached at 844.546.3500 or at [email protected]. You may also reach out to him on social media, as he is active on linkedin, twitter, facebook, instagram, and youtube.?