June 9, 2014

Medicare Secondary Payor Guidance relating to Same-sex Spouse

The Centers for Medicare and Medicaid Services issued an “Alert” on June 3, 2014 regarding the treatment of same-sex spouses as it relates to the working aged Medicare Secondary Payor (MSP) rules applicable to employer-sponsored group health plans.  According to this guidance, beginning January 1, 2015, the following rules apply to both same and opposite sex marriages for purposes of the MSP working aged rules:

  • An individual entitled to Medicare as a spouse based upon the Social Security Administration’s rules is deemed a “spouse” for purposes of the MSP Working Aged provisions.
  • If a marriage is valid in the jurisdiction in which it was performed, then both parties to the marriage are “spouses” for purposes of the MSP Working Aged provisions.

As background, the working aged MSP rule applies to group health coverage sponsored by employers employing 20 or more full and/or part-time employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year.  In accordance with this rule, the employer-provided health coverage is the primary payer and Medicare is the secondary payer for the working aged. For purposes of the MSP rules, the "working aged" are:

  • Individuals in current employment status, aged 65 and over.
  • A spouse, aged 65 or older, of an individual who has current employment status.

The working aged rule requires benefits for these individuals to be the same as those available to individuals under age 65. Individuals in the protected group must be given the same right to participate in the employer-sponsored plan as those individuals under age 65.  In addition, these individuals cannot be encouraged or given any incentive to decline employer coverage in favor of Medicare.


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