What Constitutes “Demonstration of Responsibility” in a PIP Claim?

Commentary, Medicare Set-Aside Blog, MSP Litigation on April 14, 2015 | Posted by Jennifer Jordan, JD, MSCC

My understanding of PIP is that it pays regardless of fault.  In fact, Progressive Insurance’s website states:  “PIP Insurance pays for your personal medical expenses or for injuries sustained by your passengers – no matter who is at fault for the accident.”   It is also my understanding that in Florida, PIP subrogation is generally prohibited by F.S.A. § 627.736(3) so potential third party recoveries shouldn’t prevent payment or reimbursement. And even if PIP coverage was contractually secondary to an individual’s health insurance, that would never apply in the case of Medicare. So what further proof of payment responsibility does the court need other than a Medicare beneficiary was injured in an auto accident and had PIP coverage?

In a recent decision by the U.S. District Court for the Southern District of Florida, Progressive Insurance was given a free pass in a Medicare Advantage reimbursement claim.  While the facts in the opinion about the underlying denial are unclear, what we do know is that a Medicare Advantage beneficiary was injured in an automobile accident and carried personal injury protection (PIP) through Progressive. The MAO made payments  for all medical expenses associated with the accident conditionally yet Progressive refused to make reimbursement. The MAO assigned its rights to La Ley Recovery which assigned them to MSP Recovery, LLC which brought a private cause of action under the MSP against Progressive. Progressive moved to dismiss on the grounds that plaintiff lacked standing and subject matter jurisdiction and failed to state a claim upon which relief could be granted. Progressive was unable to refute the assignment and the court followed In re Avandia so the first two motions failed. However the court did find that plaintiff failed to state a claim and dismissed the claim. Relying upon the “demonstration” of a primary plan’s ‘responsibility to pay’ language in the MSP, the court found that plaintiff did “not allege that Defendant’s responsibility to pay had been demonstrated by any means,” therefore the claim must be dismissed. So the question is, why does the court need more evidence than the fact that this was PIP coverage to prove a payment responsibility?

And as if the PIP issue is not perplexing enough, I also take exception to this court’s requirement to demonstrate responsibility at all, given that the action was filed under 42 U.S.C. 1395y(b)(3)(A) which states only that the primary plan has to fail to pay in order to bring a private cause of action.  The demonstration of responsibility language appears in 42 U.S.C. 1395y(b)(2)(B)(iii) and that section governs only the United States’ ability to bring a private cause of action. Given a decent amount of existing recent precedent, it is unfathomable that the court relied exclusively upon the Glover case from 2006, without any regard to the cases containing extensive debate over the same issue that have occurred since.

While the debate over what reimbursement rights Medicare Advantage may or may not have continues in courts throughout the nation, opinions such as this will do little but perpetuate the problem. If ever there were an argument for a specialty court, this opinion certainly demonstrates why one should be called for. In every MSP case, not only does the judge need to fully comprehend the MSP, but also the underlying legal issue that gives rise to the payment obligation and the interplay of the two layers of law. Since any one judge likely only sees a handful of MSP cases in his entire career, it would be incredibly difficult to become proficient in Medicare secondary payer issues and therein lies the problem. Unfortunately that means get ready to continue to see opinions such as this for the foreseeable future.

 

MSP RECOVERY, LLC, Plaintiff, v. PROGRESSIVE SELECT INSURANCE CO., Defendant.
Case No. 1:15-cv-20208-UU
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2015 U.S. Dist. LEXIS 47784
April 1, 2015, Decided
April 2, 2015, Filed