March 22, 2018
Case law supporting Medicare Advantage Plans (MAPs) reimbursement rights against primary plans (WC, Liability, No-Fault) continues to accumulate with a recent decision from the United States District Court for the District of Connecticut in Aetna Life Insurance Company vs. Nellina Guerrera, et al., Civil Action No. 3:17-cv-621 (3/13/2018). Consistent with other recent decisions on the issue, the court found that the MAP, Aetna, has a right of reimbursement against the primary plan, Big Y, including double damages, if a suit is filed under the Private Cause of Action (PCA) provision of the Medicare Secondary Payer Act. In determining the rights of Aetna under the PCA provision, the court was persuaded by prior appellate court decisions in In Re Avandia, 685 F.3d 353 (3rd Cir. 2012) and Humana v. Western Heritage, 832 F.3d 1229 (11th Cir. 2016).
While the decision represents the first federal court in the Second Circuit to fully address the use of the PCA provision by a MA plan against a primary plan, what is potentially more significant is the court’s holding that MAPs cannot utilize the PCA to sue Medicare beneficiaries or their attorneys, a decision that is inconsistent with other federal court rulings.
The case arose as follows:
- The Medicare beneficiary, Nellina Guerrera, allegedly sustained personal injuries at a Big Y store on 2/20/2015.
- Ms. Guerrera was enrolled in an Aetna MAO Plan which paid for injury-related medical in the amount of $9,854.16.
- Ms. Guerrera retained the law firm Carter Mario to represent her in a liability claim against Big Y.
- Beginning on 9/22/2015, a year before a settlement agreement, Aetna made multiple attempts to provide notice to defendants of their lien.
- On 3/10/2016 Big Y agreed that it would not send the full amount of any settlement to Ms. Guerrera and her attorneys without first dealing with Aetna’s lien (We assume this may have been an agreement with Aetna).
- Case was settled for $30,000 with full amount paid to Ms. Guerrera and her attorneys on 9/15/2016 without addressing the reimbursement claim of Aetna.
- Aetna files suit not only against Big Y, but also Ms. Guerrera, and Ms. Guerrera’s attorneys under the PCA provision of the MSP Act.
The primary questions for the court were whether the PCA provision of the MSP Act is available to MAPs, who may be sued under the PCA (primary plans, Medicare beneficiaries, attorneys) and under what circumstances a suit may be brought. The PCA states as follows:
There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs [(b)](1) and [(b)](2)(A).
The court reached the following conclusions on each question.
Why May Sue Under the PCA?
In reaching its decision regarding who may be sued under the PCA the court cited the appellate court decisions In Re Avandia and Western Heritage as being persuasive in concluding the PCA unambiguously permits suits by MAPs. The court went on to find that even if the PCA was interpreted to be ambiguous, CMS regulations stating MAPs may sue under the PCA would be given deference, thus leading to the same conclusion.
Who May Be Sued Under the PCA?
While the court notes the PCA does not specify against whom a suit may be filed, it cites to Second Circuit precedent which has interpreted primary plans or payers as entities which may be sued under the PCA. The court also finds that Big Y meets the definition of a primary plan under the MSP Act and as such the suit can proceed against it.
Aetna though not only filed suit against the primary plan, Big Y, but also Ms. Guerrera, the Medicare beneficiary, and her attorneys. As to these defendants the court reaches a different conclusion. While admitting that the PCA language is vague, the court nonetheless interprets the Congressional intent as only permitting suits against primary plans. It cites the language “a primary plan . . . fails to provide for primary payment” as what not only triggers the ability to sue under the PCA, but also limits recovery to solely primary plans. The court finds that had Congress intended the PCA to apply to Medicare beneficiaries and their attorneys, it would have created such a cause of action similar to that applicable to primary plans. While the court notes its ruling conflicts with CMS’s interpretation, which would provide MAPs with a right of reimbursement against a Medicare beneficiary and their attorney, the court held it will not defer to CMS’s interpretation in this regard.
In finding that the PCA does not provide for a suit against a Medicare beneficiary or the beneficiary’s attorneys, the court declined to follow other federal court decisions which have found such an action to be viable under the PCA, such as Humana Insurance Company v. Paris Blank LLP.
When is a Suit Proper under the PCA?
In regard to the question as to when a suit is proper under the PCA, the court looks to the term “appropriate reimbursement” and determines that Big Y’s payment to Ms. Guerrera and her attorneys did not amount to appropriate reimbursement when the primary plan has notice of a claim for reimbursement from a MAP. The court goes on to again cite the Western Heritage decision which in turn cites Medicare regulations:
If a beneficiary or other party fails to reimburse Medicare within 60 days of receiving a primary payment, the primary plan ‘must reimburse Medicare even though it has already reimbursed the beneficiary or other party.’ 42 C.F.R. § 411.24(i)(1)
Accordingly, once 60 days passed from the date of payment by Big Y to Ms. Guerrera and her attorneys and no repayment was made to Aetna, Big Y became obligated to reimburse Aetna and subject to a suit by Aetna under the PCA.
Practical Implications of Decision
This decision is at the district court level, thus does not have precedential value which would make it binding precedent as we have in the 3rd (Pennsylvania, New Jersey & Delaware) and 11th (Florida, Alabama & Georgia) Circuits. Nonetheless, it represents the first decision in the 2nd Circuit (Connecticut, New York and Vermont) to completely address MAP reimbursement under the PCA, thus will be used as persuasive authority in future cases both in and out of the 2nd Circuit. While the decision in this case continues the trend of court decisions finding in favor of MAPs rights of reimbursement against primary plans under the PCA, it has diverged with prior decisions in finding suits against Medicare beneficiaries and their attorneys are not allowed under the PCA.
What this means for primary plans is they have a target firmly planted on their backs, especially if future court decisions find MAPs cannot recover against Medicare beneficiaries or their attorneys. We suspect that this issue will eventually be addressed at the appellate court level, if not in this case, then in future litigation.
What steps then can you take as a primary plan to eliminate this risk:
- Identify Medicare eligible claimants.
- Determine whether Medicare eligible claimants are or were enrolled in a MAP since the date of injury.
- If enrolled in a MAP, then investigate whether the plan is seeking reimbursement stemming from the injury.
- Make arrangements to directly reimburse the MAP for injury-related payments.
Tower MSA is readily available to assist you with our MA Plan investigation, negotiation and resolution service. Please contact us at (888) 331-4941 or email@example.com for further information or questions.