(Humana v. GlaxoSmithKline) Another MAO Denied Access to Federal Court for MSP Recoveries

Medicare Set-Aside Blog on June 21, 2011 | Posted by

On June 13, 2011, the United States District Court for the Eastern District of Pennsylvania dismissed a suit brought by Humana to recover Medicare Advantage payments it made on behalf of its enrollees settling Avandia suits with GlaxoSmithKline. It has become pretty well settled in the past year that while the MSP does make a Medidicare Advantage Orgnaization (MAO) a secondary payer, it does not provide it with a direct private cause of action to bring MSP recovery claims in federal court. As you may recall, MAO’s were granted all the powers of the Secretary of Health and Human Services and the right to bring suit for MSP recoveries lies only with the United States. Furthermore, the case cited Nott v. Aetna in which the court there held that “if the Medicare-substitute insurer includes a subrogation provision in the insurance contract, as the Medicare Act permits it to do, the right to subrogation remains a private contractual right, and any contractual disputes between the insurer and the insured can be resolved in state court.”



IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION; THIS DOCUMENT APPLIES TO: Humana v. GlaxoSmithKline
MDL No. 1871 07-md-01871,10-6733
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2011 U.S. Dist. LEXIS 63544
June 13, 2011, Decided