Social Security Act §1862

(b)Medicareas Secondary Payer.(1)Requirementsof group health plans.(A)Working aged under group health plans.(i)Ingeneral.A group health plan(I)may nottake into account that an individual (or the individuals spouse)who is covered under the plan by virtue of the individualscurrent employment status with an employer is entitled to benefitsunder this title under section 226(a), and(II)shallprovide that any individual age 65 or older (and the spouse age 65or older of any individual) who has current employment status withan employer shall be entitled to the same benefits under the planunder the same conditions as any such individual (or spouse) underage 65.(ii)Exclusionof group health plan of a small employer.Clause (i) shall not apply to a group health plan unless the planis a plan of, or contributed to by, an employer that has 20 or moreemployees for each working day in each of 20 or more calendar weeksin the current calendar year or the preceding calendar year.(iii)Exception for small employers in multi-employer or multiple employergroup health plans.Clause (i) also shallnot apply with respect to individuals enrolled in a multiemployeror multiple employer group health plan if the coverage of the individualsunder the plan is by virtue of current employment status with an employerthat does not have 20 or more individuals in current employment statusfor each working day in each of 20 or more calendar weeks in the currentcalendar year and the preceding calendar year; except that the exceptionprovided in this clause shall only apply if the plan elects treatmentunder this clause.(iv)Exceptionfor individuals with end stage renal disease.Subparagraph (C) shall apply instead of clause (i) to an itemor service furnished in a month to an individual if for the monththe individual is, or (without regard to entitlement under section 226) would upon applicationbe, entitled to benefits under section 226A.(v)Grouphealth plan defined.In this subparagraph,and subparagraph (C), the term group health plan hasthe meaning given such term in section 5000(b)(1) of the InternalRevenue Code of 1986[554], without regard to section 5000(d)of such Code.(B)Disabled individuals in large group health plans.(i)Ingeneral.A large group health plan (asdefined in clause (iii)) may not take into account that an individual(or a member of the individuals family) who is covered underthe plan by virtue of the individuals current employment statuswith an employer is entitled to benefits under this title under section 226(b).(ii)Exceptionfor individuals with end stage renal disease.Subparagraph (C) shall apply instead of clause (i) to an itemor service furnished in a month to an individual if for the monththe individual is, or (without regard to entitlement under section 226) would upon applicationbe, entitled to benefits under section 226A.(iii)Large group health plan defined.Inthis subparagraph, the term large group health plan has the meaning given such term in section 5000(b)(2) of the InternalRevenue Code of 1986, without regard to section 5000(d) of such Code.(C)Individuals with end stage renal disease.A group health plan (as defined in subparagraph (A)(v))(i)may not takeinto account that an individual is entitled to or eligible for benefitsunder this title under section 226A  during the 12-month period whichbegins with the first month in which the individual becomes entitledto benefits under part A under the provisions of section 226A, or, if earlier,the first month in which the individual would have been entitled tobenefits under such part under the provisions of section 226A  if the individualhad filed an application for such benefits; and(ii)may not differentiatein the benefits it provides between individuals having end stage renaldisease and other individuals covered by such plan on the basis ofthe existence of end stage renal disease, the need for renal dialysis,or in any other manner;except that clause (ii) shall not prohibit a plan from payingbenefits secondary to this title when an individual is entitled toor eligible for benefits under this title under section 226A  after the endof the 12-month period described in clause (i). Effective for itemsand services furnished on or after February 1, 1991, and before thedate of enactment of the Balanced Budget Act of 1997[555](with respect to periods beginning on or after February 1, 1990),this subparagraph shall be applied by substituting 18-month for 12-month each place it appears. Effective foritems and services furnished on or after the date of enactment ofthe Balanced Budget Act of 1997, (with respect to periods beginningon or after the date that is 18 months prior to such date), clauses(i) and (ii) shall be applied by substituting 30-month for 12-month each place it appears.(D)Treatment of certain members of religious orders.In this subsection, an individual shall not be considered tobe employed, or an employee, with respect to the performance of servicesas a member of a religious order which are considered employment onlyby virtue of an election made by the religious order under section3121(r) of the Internal Revenue Code of 1986.(E)General provisions.For purposes ofthis subsection:(i)Aggregationrules.(I)All employerstreated as a single employer under subsection (a) or (b) of section52 of the Internal Revenue Code of 1986 shall be treated as a singleemployer.(II)All employeesof the members of an affiliated service group (as defined in section414(m) of such Code) shall be treated as employed by a single employer.(III)Leasedemployees (as defined in section 414(n)(2) of such Code) shall betreated as employees of the person for whom they perform servicesto the extent they are so treated under section 414(n) of such Code.In applying sections of the Internal Revenue Code of 1986 underthis clause, the Secretary shall rely upon regulations and decisionsof the Secretary of the Treasury respecting such sections.(ii)Currentemployment status defined.An individualhas current employment status with an employer if theindividual is an employee, is the employer, or is associated withthe employer in a business relationship.(iii)Treatment of self-employed persons as employers.The term employer includes a self-employed person.(F)Limitation on beneficiary liability.An individual who is entitled to benefits under this title and isfurnished an item or service for which such benefits are incorrectlypaid is not liable for repayment of such benefits under this paragraphunless payment of such benefits was made to the individual.(2)Medicaresecondary payer.(A)In general.Payment under this titlemay not be made, except as provided in subparagraph (B), with respectto any item or service to the extent that(i)payment has beenmade, or can reasonably be expected to be made, with respect to theitem or service as required under paragraph (1), or(ii)payment hasbeen made or can reasonably be expected to be made under a workmenscompensation law or plan of the United States or a State or underan automobile or liability insurance policy or plan (including a self-insuredplan) or under no fault insurance.In the subsection, the term primary plan meansa group health plan or large group health plan, to the extent thatclause (i) applies, and a workmens compensation law or plan,an automobile or liability insurance policy or plan (including a self-insuredplan) or no fault insurance, to the extent that clause (ii) applies.An entity that engages in a business, trade, or profession shall bedeemed to have a self-insured plan if it carries its own risk (whetherby a failure to obtain insurance, or otherwise) in whole or in part.(B)Conditional payment.(i)Authorityto make conditional payment.The Secretarymay make payment under this title with respect to an item or serviceif a primary plan described in subparagraph (A)(ii) has not made orcannot reasonably be expected to make payment with respect to suchitem or service promptly (as determined in accordance with regulations).Any such payment by the Secretary shall be conditioned on reimbursementto the appropriate Trust Fund in accordance with the succeeding provisionsof this subsection.(ii)Repaymentrequired.A primary plan[556], andan entity that receives payment from a primary plan, shall reimbursethe appropriate Trust Fund for any payment made by the Secretary underthis title with respect to an item or service if it is demonstratedthat such primary plan has or had a responsibility to make paymentwith respect to such item or service. A primary plans responsibilityfor such payment may be demonstrated by a judgment, a payment conditionedupon the recipients compromise, waiver, or release (whetheror not there is a determination or admission of liability) of paymentfor items or services included in a claim against the primary planor the primary plans insured, or by other means. If reimbursementis not made to the appropriate Trust Fund before the expiration ofthe 60-day period that begins on the date notice of, or informationrelated to, a primary plans responsibility for such paymentor other information is received, the Secretary may charge interest(beginning with the date on which the notice or other informationis received) on the amount of the reimbursement until reimbursementis made (at a rate determined by the Secretary in accordance withregulations of the Secretary of the Treasury applicable to chargesfor late payments).(iii)Action by united states.In order torecover payment made under this title for an item or service, theUnited States may bring an action against any or all entities thatare or were required or responsible (directly, as an insurer or self-insurer,as a third-party administrator, as an employer that sponsors or contributesto a group health plan, or large group health plan, or otherwise)to make payment with respect to the same item or service (or any portionthereof) under a primary plan. The United States may, in accordancewith paragraph (3)(A) collect double damages against any such entity.In addition, the United States may recover under this clause fromany entity that has received payment from a primary plan or from theproceeds of a primary plans payment to any entity. The UnitedStates may not recover from a third-party administrator under thisclause in cases where the third-party administrator would not be ableto recover the amount at issue from the employer or group health planand is not employed by or under contract with the employer or grouphealth plan at the time the action for recovery is initiated by theUnited States or for whom it provides administrative services dueto the insolvency or bankruptcy of the employer or plan. An actionmay not be brought by the United States under this clause with respectto payment owed unless the complaint is filed not later than 3 yearsafter the date of the receipt of notice of a settlement, judgment,award, or other payment made pursuant to paragraph (8) relating tosuch payment owed.[557](iv)Subrogationrights.The United States shall be subrogated(to the extent of payment made under this title for such an item orservice) to any right under this subsection of an individual or anyother entity to payment with respect to such item or service undera primary plan.(v)Waiverof rights.The Secretary may waive (inwhole or in part) the provisions of this subparagraph in the caseof an individual claim if the Secretary determines that the waiveris in the best interests of the program established under this title.(vi)Claims-filingperiod.Notwithstanding any other timelimits that may exist for filing a claim under an employer group healthplan, the United States may seek to recover conditional payments inaccordance with this subparagraph where the request for payment issubmitted to the entity required or responsible under this subsectionto pay with respect to the item or service (or any portion thereof)under a primary plan within the 3-year period beginning on the dateon which the item or service was furnished.(vii)[558]Use of websiteto determine final conditional reimbursement amount.(I)Notice to secretary of expected dateof a settlement, judgment, etc.In the case of a payment made by the Secretary pursuant to clause(i) for items and services provided to the claimant, the claimantor applicable plan (as defined in paragraph (8)(F)) may at any timebeginning 120 days before the reasonably expected date of a settlement,judgment, award, or other payment, notify the Secretary that a paymentis reasonably expected and the expected date of such payment.(II)