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Jul 16, 2018

U.S. District Court Sanctions MSP Recovery and Counsel for Misstatement in Pleadings

We are continuing to monitor the nationwide string of suits filed by MAO-MSO Recovery II, LLC and MSP Recovery, LLC (“Plaintiffs”) against multiple insurance carriers. As you may recall, Plaintiffs filed putative class action suits claiming to be assignees of recovery rights originally held by Medicare Advantage Organizations (“MAO”) under the Medicare Secondary Payer Act (“MSPA”). Recently, the United States District Court for the Central Division of Illinois sanctioned MSP

District Court Affirms Medicare Advantage Organization’s Right to Sue Primary Plans Pursuant to the

Melisa Zwilling

Apr 6, 2018

District Court Affirms Medicare Advantage Organization’s Right to Sue Primary Plans Pursuant to the

A U.S. District Court followed the trend of permitting a Medicare Advantage Organization (“MAO”) to sue pursuant to the Medicare Secondary Payer Act’s (“MSPA”) Private Cause of Action (“PCOA”) provision. In Aetna Life Ins. Co. v. Guerrera, Aetna, a MAO, paid medical expenses on behalf of a Medicare beneficiary after he sustained personal injuries at a grocery store. After Aetna notified the defendant-grocery store of its lien, the grocery store settled and issued payment to t

Fifth Circuit District Court Allows MAO Action Seeking Reimbursement from Tort Settlement Fund to Go

Melisa Zwilling

Apr 6, 2018

Fifth Circuit District Court Allows MAO Action Seeking Reimbursement from Tort Settlement Fund to Go

On March 16, 2018, the United States District Court for the Southern District of Texas denied defendant’s Motion to dismiss in Humana, Inc. v. Shrader Sc Associates, LLP., 2018 U.S. Dist. LEXIS 43884, *13. The matter originated from a suit by Humana, Inc., United Healthcare Services, Inc., and Aetna, Inc. (“Plaintiffs”) for reimbursement from settlement funds being held by law firm Shrader & Associates, LLP (“Shrader”). Shrader represented several claimants who suffered asb

11th Circuit District Court: MAO Action Against Treatment Provider Under PCOA Provision of MSP May P

Melisa Zwilling

Mar 29, 2018

11th Circuit District Court: MAO Action Against Treatment Provider Under PCOA Provision of MSP May P

A U.S. District Court for the Southern District of Florida recently held that a Medicare Advantage Organization (MAO) may bring an action against a provider for double damages under the private cause of action provision of the Medicare Secondary Payer Act (MSP). While we have seen numerous cases from Medicare Advantage Organizations against primary insurers, a claim against a treatment provider under the MSP is something that this Court had not yet considered. In MSPA Claims

U.S. District Court Holds that a Plaintiff Must Exhaust Administrative Proceedings Prior to Judicial

Melisa Zwilling

Mar 23, 2018

U.S. District Court Holds that a Plaintiff Must Exhaust Administrative Proceedings Prior to Judicial

A U.S. District Court affirmed that a plaintiff must exhaust the administrative appeals process before seeking a declaratory judgment that Medicare is not entitled to recover conditional payment claims. In Weiss v. Price, the Plaintiff filed a medical malpractice suit, following the death of her husband, alleging two claims: (i) a wrongful death claim, in her individual capacity, and (ii) a survivorship claim, on behalf of the Estate. The state court judge allocated all settl

U.S. District Court Again Follows Eleventh Circuit Decision Finding that the Existence of a Contract

Melisa Zwilling

Mar 31, 2017

U.S. District Court Again Follows Eleventh Circuit Decision Finding that the Existence of a Contract

MSP Recovery, LLC v. Allstate Ins. Co., No. 15-21532, 2017 U.S. Dist. LEXIS 41424 (U.S. Dist. S.D. Fla., March 21, 2017) was recently back before the United States District Court for the Southern District of Florida, again on a motion to dismiss. As you may recall, this case was one of the seven consolidated cases included in the Eleventh Circuit decision finding that a contractual obligation alone could satisfy the “demonstrated responsibility” requirement of the private cau

U.S. District Court Again Relies on Eleventh Circuit Decisions And Allows Medicare Advantage Organiz

Melisa Zwilling

Mar 31, 2017

U.S. District Court Again Relies on Eleventh Circuit Decisions And Allows Medicare Advantage Organiz

In the recent case, Mspa v. Century Sur. Co., No. 16-20752, 2017 U.S. Dist. LEXIS 37040 (U.S. Dist. S.D. Fla., March 15, 2017), the United States District Court for the Southern District of Florida once again considered the rights of Medicare Advantage Organizations (MAOs) to seek reimbursement of medical expenses under the Medicare Secondary Payer Act (MSP). In this case, the enrollee of Florida Healthcare Plus, a Medicare Advantage Organization (MAO), was injured on propert

District Court Grants Motion to Dismiss After U.S. Argues that Court Lacks Jurisdiction Over Medicar

Melisa Zwilling

Nov 15, 2016

District Court Grants Motion to Dismiss After U.S. Argues that Court Lacks Jurisdiction Over Medicar

In Cheryl Nelson & Geico Gen. Ins. Co. v. Medi-Cal., No. 1:16-cv-01328-LJO-BAM, 2016 U.S. Dist. Ct. LEXIS 153596 (E.D. Cal., November 4, 2016), the Plaintiffs (Geico General Insurance Company and Cheryl Nelson) brought an action for an interpleader of funds. The Plaintiffs intended on resolving competing claims by twelve entities against a $100,000.00 motor vehicle accident insurance settlement which was to be paid to the injured party. Plaintiffs alleged that they were unabl

US District Court Approves Split of Settlement Funds between CMS and TriCare

Melisa Zwilling

Oct 26, 2016

US District Court Approves Split of Settlement Funds between CMS and TriCare

The present action, Geico Gen. Ins. Co. v. Dep’t of the Navy Med. Care Recovery Unit, arises out of a motor vehicle accident where June Shaw, an occupant of the vehicle was severely injured when Cecil Shaw had a medical event that led to the accident. Ms. Shaw was both a Medicare and TriCare beneficiary. As a beneficiary of both entities, Ms. Shaw was entitled to treatment on the condition that Medicare and TriCare would be reimbursed after settlement for payment of accident-

US District Court: Ruling in Sexton vs. Medicare

Melisa Zwilling

Aug 1, 2016

US District Court: Ruling in Sexton vs. Medicare

In Sexton v. Medicare, 2016 U.S. Dist. LEXIS 89818, Medicare made conditional payments for Plaintiff’s treatment after Plaintiff was injured in a motor vehicle accident. After the conditional payments were made, Medicare issued a conditional payment letter to Plaintiff notifying him that Medicare had paid $678.80 for treatment of his accident-related injuries and that he may be required to reimburse Medicare for medical expenses related to his liability claim in the future. T

US District Court: Evaluates Requirement of Demonstrated Responsibility

Melisa Zwilling

May 12, 2016

US District Court: Evaluates Requirement of Demonstrated Responsibility

Previously, we reported on the trend of recent decisions holding that a contractual relationship alone is insufficient to demonstrate primary payer responsibility sufficient to proceed under the Medicare Secondary Payer Act (MSPA). See MSPA Claims 1, LLC v. Liberty Mut. Ins., No. 1:15-cv-21417-UU, 2015 U.S. Dist. LEXIS 99188 (S.D. Fla. July 22, 2015); see also Glover v. Liggett Group, Inc., 459 F.3d 1304 (11th Cir. 2006). As predicted, courts continue addressing the requireme

US District Court: Involvement of MSPA Does Not Create a Federal Question

Melisa Zwilling

May 12, 2016

US District Court: Involvement of MSPA Does Not Create a Federal Question

In Mikiewicz v. Hamorski and Erie Insurance Exchange, 2016 U.S. Dist. LEXIS 58859 (May 3, 2016), the United States District Court for the Middle District of Pennsylvania removed the case before them from federal court and remanded it back to state court, finding that the mere involvement of a federal statute is not enough to provide a proper basis for removal from state court to federal court. In remanding the case to state court, the Court applied the well-pleaded complaint

US District Court: CIGA Responsible for Reimbursing Medicare Conditional Payment Claims

Melisa Zwilling

May 12, 2016

US District Court: CIGA Responsible for Reimbursing Medicare Conditional Payment Claims

In CIGA v. Burwell, 2016 U.S. Dist. LEXIS 34163 (March 16, 2016), the California Insurance Guaranty Association (CIGA) filed a declaratory and injunctive relief action asserting that it was not required to reimburse the United States for Medicare benefits paid to individuals whose losses may also be covered by CIGA. The United States filed a motion to dismiss CIGA’s claim, which the Court granted. CIGA was created as a fund from which insureds could obtain financial and legal

Petitioner Alleges Violation of the False Claims Act By Making Medicare Primary Payer

Melisa Zwilling

Mar 29, 2016

Petitioner Alleges Violation of the False Claims Act By Making Medicare Primary Payer

In Negron v. Progressive Cas. Ins. Co.., No. 14-577, 2016 U.S. Dist. LEXIS 24994 (U.S Dist. N.J., March 1, 2016), a complaint was brought under the False Claims Act against Progressive Casualty Insurance Company and Progressive Garden State Insurance Company. The complaint alleged that the insurers allowed Medicare and Medicaid beneficiaries to elect a health first automobile insurance policy which caused health care providers to submit medical claims to Medicare and Medicaid

US District Court: Plaintiff Responsible for Full Amount of Formal Demand

Melisa Zwilling

Mar 23, 2016

US District Court: Plaintiff Responsible for Full Amount of Formal Demand

In Anderson v. Burwell, 2016 U.S. Dist. LEXIS 26633 (March 3, 2016), a case arising out of the United States District Court for the Eastern District of Michigan, Southern Division, the Court upheld the Administrative Law Judge’s decision requiring Plaintiff to reimburse Medicare for the full amount of the formal demand, rather than the amount of the prior Conditional Payment Letter (CPL). After Barbara Anderson passed away on September 20, 2006, Roland Anderson (Plaintiff), a

Hospital Must Exhaust Administrative Remedies Before Filing Suit in Federal Court

Melisa Zwilling

Feb 16, 2016

Hospital Must Exhaust Administrative Remedies Before Filing Suit in Federal Court

Select Specialty Hospital-Ann Arbor, the Plaintiff in the present action, filed suit in federal court against the Secretary of Health and Human Services, Defendant, after treating a Medicare-covered patient, Milda Matilla (“Matilla”), and not receiving reimbursement for treatment rendered. Medicare maintains treatment was not reimbursed because Plaintiff did not file a valid claim for reimbursement and the deadline to do so expired. In October 2012, Matilla received a contami

Melisa Zwilling

Jan 28, 2016

Court Dismisses Takemoto Qui Tam Action

On January 20, 2016, the US District Court for the Western District of New York issued an order dismissing the claims of Kent Takemoto against numerous defendants 2016 U.S. Dist. LEXIS 6468. In his complaint, Takemoto alleged that countless insurer, self-insurer and TPA defendants violated the Medicare Secondary Payer Act by “knowingly and improperly” avoiding their “obligation to reimburse the United States for payments made to Medicare beneficiaries.” The court found tha

Determining Rights of Medicare Advantage Plans: State Lacks Jurisdiction

Melisa Zwilling

Dec 10, 2015

Determining Rights of Medicare Advantage Plans: State Lacks Jurisdiction

In the most recent decision in a series of cases involving a 2009 incident at a condominium, a Florida Court of Appeal finds that the lower court erred in finding subject matter jurisdiction when determining the recovery rights of a Medicare Advantage Plan. Ms. Reale, the plaintiff in the present case, was injured in 2009 at a condominium insured by Western Heritage. Humana, a Medicare Advantage Plan, paid for treatment related to that injury. Humana originally pursued recove

US District Court: Requires More Than Contractual Obligation to Establish Primary Payer Responsibili

Melisa Zwilling

Oct 12, 2015

US District Court: Requires More Than Contractual Obligation to Establish Primary Payer Responsibili

We continue to see courts acknowledging the rights of Medicare Advantage Organizations (MAOs) to pursue an action for recovery of conditional payments under the private cause of action provision of the Medicare Secondary Payer Act (MSPA). Recently, the discussion has revolved around the requirement to establish an obligation for primary payment before an action under the MSPA is allowed to proceed. Interestingly, courts have found that contractual relationship alone will not

District Court in the Eleventh Circuit Gives Humana a Private Cause of Action Under the MSP

Melisa Zwilling

Mar 18, 2015

District Court in the Eleventh Circuit Gives Humana a Private Cause of Action Under the MSP

Courts continue to follow the Third Circuit’s lead by finding that Medicare Advantage Organizations (MAO) have a private cause of action to pursue reimbursement under the Medicare Secondary Payer Act (MSP). In the present case, Humana Med. Plan v. W. Heritage Ins. Co., (2015 U.S. Dist. LEXIS 31875), the United States District Court for the Southern District of Florida followed the direction of the Third Circuit's and, in granting Humana’s Motion for Summary Judgment, found th

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