Florida/Georgia Personal Injury & Workers Compensation

...The MSP authorizes a private cause of action against a primary plan that pays a judgment or settlement to a Medicare beneficiary, but fails to pay Medicare its share. See United States v. Baxter Intern., Inc., 345 F.3d 866, 879 (11th Cir. 2003) (“Under [42 C.F.R. §] 411.24(i), a ‘third party payer’ may be required to reimburse Medicare if it paid a provider or a claimant when it knew, or should have known, that Medicare had made a conditional primary payment.”). 11  IV....

...ot reimbursed as required by paragraph (h) of this section, the third party payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party. 42 C.F.R. § 411.24....

...ernment from compliance with the MSP statute or the pleading standards of Fed. R. Civ. P. 8(a). 17  Next, the court considered whether the Government was entitled to reimbursement under 42 C.F.R. § 411.24(i), the “double payment” regulation adopted pursuant to the MSP. Under Section 411.24(i), a “third party payer” may be required to reimburse Medicare if it paid a provider or a claimant when it knew, or should have known, that Medicare had made a conditional primary payment as provided by the MSP....

...f court. 19  Next, the court addressed whether the Government could bring a claim in Count II against the RSP Defendants for double damages pursuant to 42 U.S.C. § 1395y(a)(3)(A) and 42 C.F.R. § 411.24(c)(2)....

...id not fit either the statute's 20 or HHS regulations' illustration of who qualifies as an entity that receives payment: the statute uses the illustration “any physician or provider,” while 42 C.F.R. § 411.24(g) refers to “a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a third party payment.” All of those entities, the court observed, are likely to be ultimate recipients of payment rather than mere conduits. Where an entity has merely remitted payment as a pass- through, the court held, that entity is reachable only through 42 C.F.R. §§ 411.24(i), which requires proof of knowledge of Medicare's prior payment that is lacking in this case. III....

...o that proffered by Defendants from the affidavit of HHS administrator Paul J. Olenick, which the Government submitted in HIAA as its statement of when HHS will consider an insurer to have the requisite knowledge to trigger liability under 42 C.F.R. § 411.24(i)(2)....

...Circuit and the 71 district court is the only reasonable interpretation of the statute, because we reject the Government’s argument in this case on other grounds. The only support for its position proffered by the Government in this case is 42 C.F.R. §411.24(i), which provides in relevant part: (i) Special rules....

...reimburse Medicare (the Government’s view), or the insurer’s duty to reimburse the injured party for out-of-pocket medical expenses (the Defendants’ view), or both. The pertinent regulations to which we owe deference are codified at 42 C.F.R. §§ 411.24(c)(1) and (c)(2)....

...75 which Medicare is forced to litigate. Only in the second category of cases, according to the regulations, will the Government demand double damages. The Government cited the regulations in its Complaint, but did not rely on § 411.24(c) in its briefs to the district court or here....

...Applying ejusdem generis here, we can assume that Congress intended the term “any other entity” to be understood with reference to “physician” and “provider,” and to encompass only entities of like kind. The agency's implementing regulation, 42 C.F.R. § 411.24(g), lists as examples of entities liable as recipients: “a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a third party payment.” This list is broader than that furnished by th...

...Defendants continually contribute enough money to sustain the settlement fund, which does not equate to discretion over the payment of claims. In HIAA, the D.C. Circuit invalidated as exceeding HHS' statutory authority the former 42 C.F.R. § 411.24(e), which provided that Medicare's direct right of action under 42 U.S.C....

...80 administrator as defendants. Consequently, the district court was correct in dismissing Count VI against the Escrow Agent.39 We reach a different conclusion, however, as to the RSP Defendants. Section 411.24(g) of the regulations lists an “insurer” as an example of a party that may be liable as having received payment....

...6) Does the Government have a claim under the MSP statute for declaratory and injunctive relief (Counts V and VII)? 40 The references to “a State agency” and “a private insurer” in § 411.24(g) indicate that HHS believes a party can be a recipient of payment even if all it is receiving is reimbursement for its own prior payments, rather than (as with a doctor) a fee for services rendered....

...If the Secretary makes a conditional payment, the primary plan must reimburse the Secretary. Id. § 1395y(b)(2)(B)(ii). Paragraph (2)(B) also establishes and defines a Government cause of action to recover from a primary plan. Id. § 1395y(b)(2)(B)(iii); see also 42 C.F.R. § 411.24 (describing a Government cause of action against a primary plan or any other person that received a primary payment)....

...§ 422.108 (f). Under subpart B of part 411 of chapter 42, CMS regulations identify two causes of action available to the Secretary: one against a primary payer and one against any entity (including a beneficiary) that receives a primary payment. 42 C.F.R. §§ 411.24 (e), 411.24(g)....

...an agency.”). 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)(l)....

...Reale or any other party is insufficient to extinguish *1240 its prospective reimbursement obligation to Humana. Sixty days after Western tendered the settlement to the Reales and their attorney, because no party reimbursed Humana, Western became obligated to directly reimburse Humana. See id. § 411.24(i)(l)....

...[6] Moreover, the purpose of the MSP is to reduce Medicare costs. Baxter, 345 F.3d at 874. A Medicare beneficiary that recovers from a self-insured tortfeasor for medical expenses that Medicare has paid is required to reimburse Medicare. 42 C.F.R. § 411.24(h) (2004) ("If the beneficiary or other party receives a third party payment, the beneficiary or other party must reimburse Medicare within 60 days.")....

...payment from a primary plan or from the proceeds of a primary plan’s payment to any entity.” Id. CMS regulations have clarified that “any entity” includes beneficiaries, providers, suppliers, physicians, attorneys, state agencies, and private insurers. 42 C.F.R. § 411.24(g) (2014); U.S....

...at 1237 (quoting § 1395y(b)(3)(A) ) (emphasis added). This language recognizes that an MAO pursuing a claim against an insurance carrier must demonstrate that the carrier "fail[ed] to honor the underlying statutory or contractual obligation." 832 F.3d at 1237 . 5. 42 C.F.R. § 411.24 (f) is Invalid. MSPA next cites 42 C.F.R. § 411.24 (f) in support of its broad preemption argument. 42 C.F.R. § 411.24 (f) provides that Medicare "may recover without regard to any claims filing requirements that the insurance program or plan imposes on the beneficiary or other claimant such as a time limit for filing a claim or a time limit for notifying t...

...ulation would excuse MSPA from compliance with State claims filing requirements - not the substantive law governing no-fault claims such as relatedness to a covered accident, reasonableness, deductibles, and policy limits. More importantly, however, § 411.24(f) was declared invalid in Health Ins. Ass'n of America, Inc. v. Shalala , 23 F.3d 412 , 425. In Shalala , an insurance association claimed § 411.24(f) exceeded the statutory authority delegated to Medicare. After reviewing the controlling statutes, the court agreed 411.24(f) was void....

..." § 1395y(2)(B)(ii), the court reasoned that this criteria would not be satisfied "[i]f the beneficiary and provider have already missed the filing deadline by the time Medicare makes its payment." Id. at 419 . Accordingly, the court held, " 42 CFR § 411.24 (f)......

...at 1237 (quoting § 1395y(b)(3)(A) ) (emphasis added). This language recognizes that an MAO pursuing a claim against an insurance carrier must demonstrate that the carrier "fail[ed] to honor the underlying statutory or contractual obligation." 832 F.3d at 1237 . 5. 42 C.F.R. § 411.24 (f) is Invalid. MSPA next cites 42 C.F.R. § 411.24 (f) in support of its broad preemption argument. 42 C.F.R. § 411.24 (f) provides that Medicare "may recover without regard to any claims filing requirements that the insurance program or plan imposes on the beneficiary or other claimant such as a time limit for filing a claim or a time limit for notifying t...

...ulation would excuse MSPA from compliance with State claims filing requirements - not the substantive law governing no-fault claims such as relatedness to a covered accident, reasonableness, deductibles, and policy limits. More importantly, however, § 411.24(f) was declared invalid in Health Ins. Ass'n of America, Inc. v. Shalala , 23 F.3d 412 , 425. In Shalala , an insurance association claimed § 411.24(f) exceeded the statutory authority delegated to Medicare. After reviewing the controlling statutes, the court agreed 411.24(f) was void....

..." § 1395y(2)(B)(ii), the court reasoned that this criteria would not be satisfied "[i]f the beneficiary and provider have already missed the filing deadline by the time Medicare makes its payment." Id. at 419 . Accordingly, the court held, " 42 CFR § 411.24 (f)......

...This is evidenced by Western Heritage’s attempts to include Humana on the settlement agreement it entered into with Mrs. Reale. Medicare *1293 regulations provide that “[i]f the beneficiary or other party receives a primary payment, the beneficiary or other party must reimburse Medicare within 60 days.” 42 C.F.R. § 411.24 (h)....

...Additionally, “[i]n the case of liability insurance settlements ... [i]f Medicare is not reimbursed as required by paragraph (h) ... the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.” 42 C.F.R. § 411.24 (i)(1); see Manning v....

1304, 1309 (11th Cir. 2006); see also 42 C.F.R. § 411.24(i)(2), Plaintiffs plausibly alleged that Defendants

...nts [a plaintiff] the right to override claims filing requirements required by primary plans, [but does] not impose a limitations period;" (2) the legislative history confirms this; and (3) the Court should grant Chevron deference to *1273 42 C.F.R. § 411.24 (f)(1) (DE 117, at 2, 8)....

...onditional payments needed to abide by an insurance plan's filing requirements, with the amended provision allowing recovery of payments as long as a request for payment is made "within 3 years") ). Finally, the regulation Plaintiff cites, 42 C.F.R. § 411.24 (f)(1) (DE 117, at 8) is in no way inconsistent with the plain language of § 1395y(b)(2)(B)(vi). 42 C.F.R. § 411.24 (f)(1) ("CMS may recover without regard to any claims filing requirements that the insurance program or plan imposes....

...(DE 17 ¶53). Putting aside the fact that Plaintiff provides no basis-legally, factually, or statutorily-for that assertion in either the briefing on this motion or the Second Amended Complaint, this contention is directly belied by the language of 42 C.F.R. § 411.24 , which is entitled "Recovery of Conditional Payments" and states under Section (c) "Amount of recovery": (1) If it is not necessary for CMS to take legal action to recover, CMS recovers the lesser of the following: (i) The amount of the Me...

...Because Allstate paid the medical expenses of the enrollee and the Provider Defendants reimbursed Medicare without legal action, the amount of recovery in this case under the regulations would therefore be precisely what the Defendants paid: $285.75. Second, Plaintiff claims that 42 C.F.R. § 411.24 (h) requires that reimbursement be tendered within 60 days of payment from the primary payer, and alleges that the Provider Defendants failed to provide appropriate repayment within that timeline, entitling FHCP to additional payment. While it is true that 42 C.F.R. § 411.24 (h) states that "[i]f the beneficiary or other party receives a primary payment, the beneficiary or other party must reimburse Medicare within 60 days," the apparent penalty for failing to comport *1355 with that timeframe is accrual of interest on the amount owed. See 42 C.F.R. § 411.24 (m) ("(i) CMS may charge interest if reimbursement is not made to the appropriate trust fund before the expiration of the 60-day period ......

...(ii) Interest may accrue ..."). Plaintiff has pled no facts regarding the amount of interest owed based on the alleged 7-month delay in the $285.75 reimbursement or any request that such an interest payment be made, despite the fact that the language of 42 C.F.R. § 411.24 (m) makes the charge of interest elective, not mandatory. See 42 C.F.R. § 411.24 (m)....

..., 832 F.3d at 1239 ("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) )....

...PA, arguing that "CMS has a right of action to recover its payments from any ... provider ... that has received a primary payment," and an MAO has the same recovery rights as CMS under the relevant portions of the MSPA. (DE 26 at 4, citing 42 C.F.R. § 411.24 (g) and 422.108(f) )....

... Case: 19-11759 Date Filed: 07/15/2020 Page: 8 of 21 MAOs that QBE allegedly failed to reimburse under the Act. The Plaintiffs seek double damages under 42 U.S.C. § 1395y(b)(3)(A) and recovery of unreimbursed amounts pursuant to 42 C.F.R. § 411.24(e)....

...Under the Medicare Secondary Payer Act, an assignee has standing to sue if “(1) its ultimate assignor . . . suffered an injury-in-fact, and (2) [the assignor’s] claim arising from that injury was validly assigned.” Id. at 1318. To the extent the Plaintiffs seek to assert claims under 42 C.F.R. § 411.24, the standing analysis is identical....

...Shalala, 23 F.3d 412 (D.C.Cir.1994). A “third-party payer” which “is, or should be, aware” that Medicare has already made a payment for a service or item, and yet pays an entity other than Medicare — usually the beneficiary — is still liable for that item. 42 C.F.R. § 411.24 (i)(2). If the recipient of the third-party payment fails, to reimburse Medicare within sixty days, as required under 42 C.F.R. § 411.24 (h), then “the third party payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.” 42 C.F.R. § 411.24 (0(1)....

...If a private insurer finds out that Medi- care covered an expense for a plan participant and the private in- surer reimburses Medicare, the private insurer must reimburse only the amount Medicare paid. See 42 U.S.C. § 1395y(b)(2)(B)(iii); 42 C.F.R 411.24(c)(1). But if the private insurer doesn’t fulfill its obligation and if Medicare must sue, then the private insurer pays twice the amount Medicare paid. 42 U.S.C. §§ 1395y(b)(2)(B)(iii); 1395y(b)(3)(A); 42 C.F.R. § 411.24(c)(2)....

...If a private insurer finds out that Medi- care covered an expense for a plan participant and the private in- surer reimburses Medicare, the private insurer must reimburse only the amount Medicare paid. See 42 U.S.C. § 1395y(b)(2)(B)(iii); 42 C.F.R 411.24(c)(1). But if the private insurer doesn’t fulfill its obligation and if Medicare must sue, then the private insurer pays twice the amount Medicare paid. 42 U.S.C. §§ 1395y(b)(2)(B)(iii); 1395y(b)(3)(A); 42 C.F.R. § 411.24(c)(2)....