Caldera Petitions Supreme Court for Cert

Medicare Set-Aside Blog, MSP Litigation on August 16, 2013
Posted by Jennifer Jordan, JD, MSCC

On August 8, 2013, petition for certiorari was filed with the United States Supreme Court in the case of Caldera v. The Insurance Company of the State of Pennsylvania. The case ultimately represents the battle between state workers’ compensation laws and the federal Medicare Secondary Payer Act. In practice, CMS has routinely refused to acknowledge state laws when asserting its reimbursement rights and a Supreme Court decision in this case could help resolve that issue. However, in reality this case doesn’t really need to reach the Supremacy Clause debate to entitle it to its final appeal. Federal regulations provide that Medicare will not be prevented from recoveries due to failure of administrative procedures and that is exactly what is happening here. Caldera did not seek pre-authorization for his surgeries because at the time, the carrier had terminated his workers’ compensation benefits. Why would anyone request authorization from an insurer carrier who had already cut off their benefits for the injury? The issue here is that the carrier later entered into an agreed judgment acknowledging its responsibility for all medical treatment dating back to the date of injury. It was upon that instance that Medicare’s reimbursement rights arose; prior to that moment, Medicare was his primary payer. While the state law protects the carrier from reimbursement obligations, the question is whether that also precludes Medicare from the same. So in reality, this case would force the court to look at the validity of 42 CFR 411.24(f).

Response is due by September 11, 2013 and it is worthwhile for the insurance industry to keep an eye on this case. If the Court takes cert, this decision could have far reaching implications into MSP compliance beyond workers’ compensation.


Link to docket