No Reimbursement Obligation by Medicare in Situations Where it is the Primary Payer

Medicare Set-Aside Blog on January 25, 2012
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It is a fairly universal policy that no-fault carriers must make immediate payment for medical treatment and seek reimbursement later if found to be so entitled. Well what happens when the entity that should have made payment was Medicare and you can’t sue the federal government?  US Court of Federal Claims just released an option in which it dismissed a claim by the Auto Club Insurance Association for reimbursement of payments it made on behalf of a Medicare beneficiary injured in February 1980. Because the MSP did not take effect until December 1980, Medicare is the primary payer. The court dismissed the claim on the basis of jurisdiction. The MSP is not a money mandating statute and the plaintiff failed to allege a contract implied in fact or an illegal exaction, therefore there was nothing under the Tucker Act that provided jurisdiction in this court.

So if you can’t bring a monetary claim and you can’t overcome sovereign immunity, how exactly do you get Medicare to reimburse a claim it should have paid? Obviously you don’t. The only interesting part of the opinion was that the court recognized that the MSP makes no mention, much less any promise, of reimbursement by Medicare for expenses a private insurer alleges are the primary obligation of the federal government. The opinion stated that “[t]he one-way focus of the MSPA in favor of the federal government may seem unfair, it may put Plaintiff on the horns of a dilemma given the mandate of Michigan no-fault statutes, and it may be fruitful ground for public policy debate, but the inquiry for this Court is whether the MSPA provides jurisdiction under the Tucker Act.”

I know that I have been on a real public policy tear lately, but where does it stop? Why is Medicare the great intangible that everyone fears even though it doesn’t have half the reach people believe it has, and it has no regard for anyone or anything, including state law. We pay into that system, employers & employees alike, and yet the minute Medicare finds an excuse, it dumps beneficiaries onto the private sector at will. While the MSP serves a good purpose, as Medicare deserves to be preserved for those who truly need it, there has to be a compromise that the private sector can reach with CMS because the current one-sided policies have achieved ludicrous status. 2012 is shaping up to be an interesting MSP year already…


No. 11-256 C


2011 U.S. Claims LEXIS 2495

June 11, 2011, Filed