Mark Popolizio, Esq. Rafael Gonzalez, Esq. 7/4/2017

Transcription

1 MSP Private Cause of Action: Medicare, Beneficiaries, Medical Providers, Advantage Plans, and Prescription Plans Are Coming After You for Double Damages Rafael Gonzalez, Esq. President, Flagship Services Group Mark Popolizio, Esq. Vice President, ISO Claims Partners Mark Popolizio, Esq. VP of MSP Compliance and Policy, ISO Claims Partners. Over 15 years of experience in all facets of MSP compliance mandatory reporting, conditional payments, and set asides. JD, Nova Southeastern University, Shepard Broad Law Center (1995). BS, Quinnipiac University (1990). Rafael Gonzalez, Esq. President, Flagship Services Group. Over 25 years of experience in all facets of MSP compliance mandatory reporting, conditional payments, and set asides. JD, Florida State University (1990). BS, University of Florida (1987). 1

2 Agenda Medicare Basics. Medicare Conditional Payments. Private Cause of Action. MAPs / PDPs and Their Assignees. Who Can MAPs and PDPs Collect From. Hospitals, Clinics, and Physicians. Beneficiaries and Their Estates. Take Away. Medicare Basics Medicare Part A Hospital Coverage. Medicare Part B Physician Services. Medigap Supplement to Traditional Medicare. Medicare Part C Medicare Advantage Plans. Medicare Part D Prescription Drug Plans. Primary Payers 42 USC Section 1395y(b)(2). Group health providers, workers compensation, liability, no-fault insurers and self-insured entities. Physicians, attorneys, hospitals, or clinics that receive payment from a primary payer. 2

3 Medicare Conditional Payments 42 CFR Section Payments made by Medicare for treatment where primary payer has/may have an obligation to make payment. Primary payers must reimburse Medicare for conditional payments it has made. Primary Payer Responsibility 42 USC Section 1395y(b)(2). Responsibility as a primary payer arises even if liability is contested. Responsibility can be demonstrated by settlement, judgment, award, or payment. Medicare Right of Action 42 CFR Section US has a direct right of action against all primary payers. Medicare beneficiary, medical provider, physician, attorney, state agency or private insurer. 3

4 Private Cause of Action 42 USC Section 1395y(b)(3)(A). Private Cause of Action. for Double Damages. Group Health Plans. Non-Group Health Plans. Medicare Advantage Plans 57 Million Medicare Beneficiaries. 19 Million covered by MAP (33%). United Healthcare (21%) Humana (18%) Anthem/BCBS (16%) Kaiser Permanente (8%) Aetna (7%) Other National Insurers (4%) Cigna (3%) All Other Insurers (22%) Prescription Drug Plans 57 Million Medicare Beneficiaries. 38 Million covered by PDP (66%). United Health (26%) Humana (20%) CVS Health (12%) Express Scripts (7%) Anthem (6%) WellCare (6%) Cigna (6%) Aetna (6%) Kaiser Permanente (4%) All Other Insurers (7%) 4

5 MAPs / PDPs and Their Assignees Do MAPs/PDPs have same powers as Medicare? Do MAP/PDP Assignees have same powers? CMS Publishes Memo on Part C and Part D Reimbursement Rights December 5, MSP regulations apply to MAO collections. 42 CFR (f) indicates that MAOs exercise the same rights of recovery that HHS exercises under MSP regulations at 42 CFR 411. MSP regulations also extend to Part D Prescription Drug Plan (PDP) sponsors at 42 CFR rd Circuit Court Finds MAOs May Seek Double Damages from Primary Payer Humana Medical Plan v. Glaxo Smith Kline, LLC (USCA 3 rd Circuit, June 28, 2012). Per 42 USC 1395y(b)(3)(A), Humana can bring suit for double damages when primary plan fails to reimburse Medicare Advantage Organization secondary payer. Per 42 CFR , MAO has the same rights that the Secretary of HHS exercises under the MSP regulations. 5

6 9th Circuit Court Finds MAOs Do Not Have Private Cause of Action to Recover CPs Parra v. PacifiCare of Arizona (USCA 9 th Circuit, April 19, 2013). MAO statute allows an MAO to charge a primary plan for conditional payments made on behalf of a plan participant, but no private right of action to recover payments. 42 U.S.C. 1395y(b)(3)(A) private cause of action is for Medicare beneficiaries and healthcare providers to recover medical expenses from primary plans, not for MAO. 11 th Circuit Allows MAPs to Sue Primary Payers Under MSP for Double Damages Humana Medical Plan Inc. v. Western Heritage Insurance Company (USCA 11 th Circuit, August 8, 2016). Based on Avandia, Medicare Advantage Plans may sue primary payers under the Medicare Secondary Payer Act private cause of action, and thereby seek double damages when such primary payers have failed to reimburse MAPs for payments made related to the claimed accident and injuries. 11 th Circuit Allows Assignees to File PCA, Prove Responsibility through Contract MSP Recovery, LLC v. Allstate Insurance Company (USCA 11 th Circuit, August 30, 2016). Contractual obligation, without a judgment, settlement, award, or other payment, can satisfy the demonstrated responsibility requirement of the private cause of action provided for by the MSP Act. Court allows MAP assignee to seek double damages against no-fault, med-pay, PIP primary payers because of their refusal to reimburse MAP payments made related to the underlying covered claim. 6

7 MAPs / PDPs and Their Assignees Do MAPs/PDPs have same powers as Medicare? Do MAP/PDP Assignees have same powers? Who Can MAPs and PDPs Collect From? Can MAPs/PDPs collect from the beneficiary? Can they collect from attorney or law firm? Can they collect from defendant/insurer? Louisiana Federal Court Finds MAP Has PCA Against Medicare Beneficiary Collins v. Wellcare Healthcare Plans, Inc. (USDC ED Louisiana, December 16, 2014). Wellcare has PCA under the MSP and is entitled to reimbursement from Collins tort settlement. No 2XD because dispute on whether settlement provided compensation for medical expenses and whether settlement released tortfeasor from liability. Wellcare s request for reimbursement is within 3 years of learning about settlement (SOL per SMART Act). 7

8 Virginia Federal District Court Allows MAP to File MSP PCA Against Law Firm Humana Insurance Co. v. Paris Blank LLP and Keith Marcus (USDC ED Virginia, May 10, 2016) Since the plain language of the MSP Act fails to limit the parties against whom suit may be maintained, and CMS has previously promulgated regulations specifically allowing recovery of conditional payments from attorneys, Humana may maintain its suit against the law firm and attorney for recovery of conditional payments it made related to the settled motor vehicle claim. Florida Federal District Court Awards Double Damages to MAP From Insurer Humana Medical Plan v. Western Heritage Insurance Company (USDC SD Florida, March 16, 2015). Despite settlement and state court order setting out reimbursement, Humana is entitled to maintain a private cause of action for double damages pursuant to 42 U.S.C. 1395y(b)(3)(A) against Western Heritage. Court awards Humana $38,310.82, double the $19, it had paid in medical benefits related to the slip and fall claim from which payments were born. Who Can MAPs and PDPs Collect From Can MAPs/PDPs collect from the beneficiary? Can they collect from attorney or law firm? Can they collect from defendant/insurer? 8

9 Hospitals, Clinics, and Physicians Do Providers have same powers as Medicare? 6 th Circuit Finds Providers May Bring MSP Private Cause of Action if Medicare Paid Michigan Spine and Brain Surgeons, LLC v. State Farm Insurance (USCA 6 th Circuit, July 16, 2014). MSP Act is unclear if private cause of action allowed against NGHP that denies coverage for other than Medicare eligibility. Court concludes Michigan Spine may pursue its private cause of action claim under the MSP Act against State Farm. Hospitals, Clinics, and Physicians Do Providers have same powers as Medicare? 9

10 Beneficiaries and Their Estates Do Beneficiaries have same powers as Medicare? Kentucky Federal Court Rules Estate Has PCA, Awards Over $360,000 in Damages Estate of Clinton McDonald v. Indemnity Insurance of North America (USDC WD Kentucky, September 2, 2014). Based on USCA 6 th Circuit decision on Michigan Spine Clinic v. State Farm, as the Estate s filing of the law suit here prompted payment in the amount of $184, , the Estate is entitled to double damages per the MSP Private Cause of Action provision in that amount to reward the Estate for its efforts. Michigan State Court Awards Double Damages on MSP PCA Despite Payment Hull v. Home Depot (Michigan Circuit Court, County of Oakland, February 17, 2016) Although Home Depot had already paid $42, to Medicare and Blue Cross Blue Shield Medicare Advantage Plan, because Mr. Hull s filing of the MSP private cause of action prompted Home Depot's payment of same, Mr. Hull is entitled to double damages. State court therefore awards another $42,

11 Beneficiaries and Their Estates Do Beneficiaries have same powers as Medicare? Take Away Must learn if Claimant on Medicare A, B, C, D. If Claimant is on traditional Medicare (A & B), conditional payments resolved through Benefits Coordination Recovery Center (BCRC) and/or Commercial Repayment Center (CRC). If Claimant is on Medicare Advantage Plan (C), or Prescription Drug Plan (D), conditional payments resolved through entity that paid benefits. All have Private Cause of Action rights (2XD). Thank You! Rafael Gonzalez, Esq. President, Flagship Services Group Mark Popolizio, Esq. Vice President, ISO Claims Partners