42 U.S.C. 1395y

Medicare Secondary Payer decides who pays first.

The Medicare Secondary Payer rules determine when an employer group health plan pays before Medicare and when Medicare pays first.

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What It Requires

The Basics for Employers.

A plain-English summary. This is general information, not legal advice, and the rules change, so check the current text.

Age-Based Coverage

For employees and spouses age 65 and older, the employer plan is generally primary when the employer has at least 20 employees.

Disability-Based Coverage

For people under 65 on Medicare because of disability, the employer plan is generally primary when the employer has at least 100 employees.

Kidney Failure

For end-stage renal disease, the employer plan is generally primary for the first 30 months of Medicare eligibility.

In Practice

How it plays out.

Medicare Secondary Payer rules decide whether an employer plan or Medicare pays first for a person who has both. For some people the employer plan must pay first and Medicare pays second. For others, Medicare is primary.

The answer depends on employer size and the reason for Medicare eligibility. For employees age 65 or older, the employer plan is generally primary if the employer has 20 or more employees. For Medicare based on disability, the threshold is generally 100 employees. For end-stage renal disease, there is a coordination period during which the employer plan is primary.

A plan cannot take steps that discourage Medicare-eligible people from using the employer plan, such as offering a different benefit because they have Medicare. Getting this wrong is a compliance problem and can create claim disputes.

How We Help

Where This Shows Up in Your Plan.

Employer Benefits Guides: Eligibility, Plan Design, Life Events and Rules

Eligibility and plan design rules that connect to these decisions.

COBRA Administration

How continuation coverage interacts with Medicare.

First Steps

Checking your plan.

Count Employees

Know which size threshold applies to your group.

Identify Medicare-Eligible Members

List active employees and spouses with Medicare.

Confirm Primary Payer

Check who pays first for each person.

Review Plan Terms

Make sure no benefit differs because of Medicare.

Common Mistakes

Mistakes to avoid.

Assuming Medicare Always Pays First

For many active workers it does not.

Offering Incentives to Drop the Plan

This is generally not allowed.

Skipping Coordination Reporting

Carriers and Medicare may need coordination information.

Related Laws

Other Rules Employers Work With.

ERISA

29 U.S.C. Chapter 18

Family and Medical Leave Act

29 U.S.C. Chapter 28

Sources

Laws and Rules Referenced

Medicare Secondary Payer (42 U.S.C. 1395y) — The statute text, published by Cornell Law School’s Legal Information Institute.

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