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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 in violation of secondary payer laws. In response to the petitioner’s complaint, the defendants filed a motion to dismiss the case.

When purchasing an insurance policy through Progressive’s website, an individual had the option of choosing a health first policy. A health first policy would make the individual’s private health insurance carrier the primary payer to the automobile insurance carrier in violation of the Medicare Secondary Payer Act (MPSA). 42 U.S.C. §1395y(2)(A) of the MSPA provides that payment cannot be made by Medicare if it “can reasonably be expected to be made under a workmen’s compensation law or plan…or under an automobile or liability insurance policy or plan.” While the website informed the individual that they should not select this option if their primary health insurance was Medicare or Medicaid, it did not actually prevent an individual from signing up with Medicare or Medicaid as the primary payer. The petitioner in this case purchased an automobile policy through Progressive choosing the health first policy option, although Medicare was her primary health coverage. When she was later involved in an automobile accident requiring medical treatment, several of her health care providers submitted bills to Medicare. As a result, Medicare became the primary payer despite the MSPA which was enacted to prevent this very occurrence.

In considering the defendant’s motion to dismiss the complaint, the court found that she had sufficiently pled her case and denied the defendant’s motion. We will continue to monitor this case as it progresses.

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