Eleventh Circuit Finds Medicare Conditional Repayment Lawsuit Not Time-Barred By 3-Year Claims Filing Provision
The Eleventh Circuit recently opined that the 3-years claims filing provision found within the Medicare Secondary Payer Act does not apply to a Medicare Advantage Organization (MAO) when filing suit. The Eleventh Circuit case was initiated by Plaintiff, MSPA Claims, which is a familiar entity in the Medicare Secondary Payer (MSP) litigation space. As with other cases we have seen in the MSP space, MSPA was assigned the MAO’s recovery rights in this matter, which means the ability to obtain reimbursement and perhaps double damages for any matter for which they can recover conditional payments made by the MAO. The case at hand, MSPA Claims v. Kingsway Amigo, 2020 US. App. Lexis 4554 (11th Cir. Feb. 13, 2020), was tried before the United States District Court for the Southern District of Florida, in which the Insurer (Kings Amigo) succeeded on a motion for judgment on the pleadings, arguing that MSPA’s claim was stale because it did not comply with the claims-filing provision found in the Medicare Secondary Payer Act. .
Briefly, the pertinent facts of the case, are as follows:
- A car accident occurred on April 29, 2012, involving a party insured by Kingsway Amigo Insurance;
- The injured party was a Medicare beneficiary enrolled in an MAO, and the MAO subsequently paid for medical treatment related to the accident between April 29, 2012, and July 26, 2012;
- The claim was settled on March 28, 2013;
- MSPA sought information from the insurer regarding the accident. The insurer provided information regarding the settlement to MSPA on November 12, 2015, and a subsequent letter with the settlement agreement on November 20, 2015;
- MSPA demanded repayment for the conditional payments made, and when repayment was not received, filed a lawsuit on December 7, 2015, under the Medicare Secondary Payer Act’s private cause of action provision (42 USC § 1395y(b)(3)(A));
- The insurer contended that the request for reimbursement was required to be presented to the insurer before July 26, 2015, to be repaid and was, therefore, time-barred by the 3-years claims filing provision found within the MSP Act.
In rendering its decision, the Court examined the MSP Act, which the Court referred to as the “often-convoluted rules governing the federal Medicare program,” and in particular the specific 3-year claims filing provision utilized for the insurers’ defense, which states,
Notwithstanding any other time limits that may exist for filing a claim under an employer group health plan, the United States may seek to recover conditional payments in accordance with this subparagraph where the request for payment is submitted to the entity required or responsible under this subsection to pay with respect to the item or service (or any portion thereof) under a primary plan within the 3-year period beginning on the date on which the item or service was furnished. § 1395y(b)(2)(B)(vi).
The Court held that that two textual indicators (notwithstanding and may) contained within the above provision, enabled the Court to conclude that the claims-filing provision of 3 years does not impose a prerequisite to filing suit. Rather the Court defaulted to a different section of the MSP Act, §1395y(b)(2)(B)(iii), which states that an action cannot be brought by the United States “unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment . . . relating to such payment owed.” The Court, therefore, agreed with MSPA’s argument that the suit was timely filed under this statute of limitations because MSPA first received notice of the insurer’s payment responsibility in November 2015 and filed suit the very next month. The Court also opined that the 3-year claims-filing provision found within 1395y(b)(2)(B)(vi), “…doesn’t erect a separate bar that private plaintiffs must overcome in order to sue,” holding that the appropriate statute of limitations to apply in this case began to run from the date when MSPA first received notice of the settlement, which was not dependent upon the actual date of service of the medical treatment provided to the injured beneficiary.
Takeaway and Commentary:
The Court’s interpretation of the appropriate statute of limitations, in this case, adds an extra layer of concern to the MSP litigation we have seen to date. The first challenge in these cases is identifying Medicare Advantage Plan enrollment. The second challenge may now be that Medicare conditional repayment suits may not be time-barred, particularly if the arguments, as in this case, are accepted in other jurisdictions. Therefore, some best proactive practices that should be implemented uniformly across all cases in light of the current MSP landscape include:
- Do not wait until the settlement of a claim to identify all possible conditional payments. Medicare conditional payment/lien investigation and resolution should be done well in advance of settlement discussions;
- Review all medical bills and understand all related work injury treatment. Do not assume that medical treatment has terminated because bills have not been received. Ask questions of beneficiaries as to whether they are still treating;
- Create an open dialogue with the injured worker or their counsel, if represented, inquiring about all plans a Medicare beneficiary is enrolled in or have been enrolled in since the inception of the claim, or since the date of the incident. The timely discovery of MAP and Part D can benefit all settling parties. Ask to see verification of enrollment in these plans; and
- Create uniform internal processes on how to timely handle conditional payments, MAP recoveries, and other liens; Responding to all correspondence timely and promptly.
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 42 USC §1395y.