Caldera Update – Reply Brief for Petitioner Filed

Medicare Set-Aside Blog, MSP Litigation on September 20, 2013
Posted by Jennifer Jordan, JD, MSCC

In a very concise manner, Petitioner has filed his Reply Brief to the Respondent Brief in Opposition, reiterating to the Supreme Court that there is a real case and controversy regarding the effect of state law preemption of the Medicare Secondary Payer Act in this case and therefore that he is not requesting an advisory opinion. In defense of accusations that the Petition for Cert was broader than the issue raised before the Fifth Circuit, Calder responded that it was necessary because the Fifth Circuit’s analysis broadened the application to any state law. In response to accusations that Petitioner manufactured this action, attention was directed at the timeline of events. If this allegation was true, Caldera would have had to have been clairvoyant and extremely patient as this issue was over ten years in the making and mostly of the insurer’s doing, having used an “extent of injury” argument to terminate medical benefits of an unrepresented claimant for an uncontested claim in a state with no medical closure. With regard to qui tam allegations, Petitioner needlessly points out that the Respondent is simply wrong on that issue as Respondent was in fact simply wrong. MSP is not a qui tam statute and there is a considerable amount of case law and a sanction against Douglas Stalley for filing them to prove it. Regardless, case like this, brought by the Medicare beneficiary, have been the only successful use of §1395y(b)(3)(A) to date as no one else has a personal financial interest. And lastly, Caldera addresses the misrepresentation of US v. Rhode Island Insurer’s Insolvency Fund and reiterates that McCarran-Furguson is not applicable here as the MSP is a federal statute specifically regulating the business of insurance. Very simple, to the point and in only 11 pages inclusive of cover and tables.

Unfortunately this brief is limited to responding to desperate arguments raised by the Respondent, otherwise more poignant issues could have been emphasized for the benefit of the Court. This is not truly a federal preemption issue if the “responsibility” needed for MSP purposes proves to be for the injury in general and not necessarily any individual payment. And frankly this is hardly any different than collateral source rules that prohibit recovery of medical expenses except when there is a statutory recovery right. We need to come to terms with the concept that anything that aids the long term viability of the Medicare trust funds in light of our aging population is going to prevail. If cert is denied, we should be on the lookout for legislative closure of this loophole allowing primary payers to shirk payment responsibility for administrative technicalities. Last time the federal government was faced with such a limitation, we got a technical amendment in the Medicare Modernization Act of 2003 that expanded the MSP not only to self insurance situations that were not formal plans, which was the litigation issue the government needed to overcome, but we also attached personal liability to anyone in receipt of funds from the settlement. SO be careful what you wish for here.

And now we wait…