Karen C. Yotis, Esq., the Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.
Building on offerings from prior years, the National Workers’ Compensation and Disability Conference & Expo once again presented a stand-out session on Medicare Secondary Payer Case Law Trends during its 2013 gathering in Las Vegas. In true NWCDC style, a top notch panel featuring MSP doyenne Jennifer C. Jordan, esteemed workers’ compensation attorney Vernon Sumwalt, and legal eagle James J. Kennedy, III, gave something different than what most conference audiences have come to expect. In Part 2 of this series, we focus on Sumwalt’s presentation.
PRIVATE CAUSES OF ACTION
The floor was then turned over to Vernon Sumwalt, who explained how Medicare Advantage litigation is broadening the scope of the private right of action under 42 U.S.C.S. § 1395y(b)(3)(a), leading to cases in which medical providers already paid by Medicare are being allowed to pursue carriers for reimbursement of that same payment on Medicare’s behalf. This is a completely different creature from the government’s right to double damages under the MSP. Instead, this particular road to recovery allows a private party to get double damages against a primary plan.
In addition, this particular private right of action does not involve the government’s usual Medicare conditional damages, but rather breach of an obligation under state law and paying for making a primary payment.
Editor's Note: Citations below link to lexis.com. Bracketed citations link to Lexis Advance.
The most remarkable development in this landscape of potential exposure is the expansion of the “injury in fact” requirement beyond the Medicare beneficiaries being threatened with a reimbursement claim from Medicare---to whom the element clearly applies—to Medicare Advantage Plans. Describing a veritable Sherman’s March towards the United States Supreme Court, Sumwalt discussed cases filed in the Third and Ninth Circuits, as well as four suits filed in July 2013 in Tennessee, Texas, Missouri, and Kansas to test whether Medicare Advantage Plans and organizations have standing in this litigation context. [Editor’s Note: Citations link to lexis.com. Bracketed citations link to Lexis Advance: In re: Avandia Marketing, 685 F.3d 353 [685 F.3d 353] (3d Cir. 2012), cert. den. 2013 U.S. LEXIS 2969 (U.S., Apr. 15, 2013); Parra v. PacifiCare of Arizona, Inc., 715 F.3d 1146 [715 F.3d 1146] (9th Cir. April 19, 2013); and Cariten Health Plan v. Mid-Century Insurance Company, Case 3:13-cv-00417; Humana Ins. Co. v. Farmers Texas County Mutual Ins. Co. & Mid-Century Ins. Co. of Texas, Case no. 1:13-cv-00611-LY; Humana Health Plan v. Farmers Ins. Co., Case No. 4;13-CV-730; Humana Health Plan v. Farmers Ins. Co., Case no. 13:2367-SAC-KGS].
Sumwalt also discussed the troublesome differences between applicable federal requirements versus state law requirements with respect to Medicare repayments. At issue in these cases is what the requirements are to commence a private cause of action for double damages under §1395y(b)(3)(A) , whether state laws trump the purpose of the MSP, and whether other states will join the current parties litigant and invoke state law limits to avoid indefinite MSP obligations. [Caldera v. Ins. Co. of Pa., 716 F.3d 861 [716 F.3d 861] (5th Cir. 2013), 2013 U.S. LEXIS 7439 (U.S., Oct. 15, 2013)].
All of this federal and state jockeying appears to be begging the federalization question with respect to a new type of Obamacare for workers’ compensation, or, in Sumwalt’s view, the introduction of federal minimum standards. Fodder perhaps for the NWCDC’S 2014 MSP session(s).
See Part 1 of this article: “My Big Fat Annual Conference: MSP Litigation Strategies to Manage Some Very Risky Business”.
See Part 3 of this article: “My Big Fat Annual Conference: The Feds Bring Out Their Big Guns”.
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