Tuesday, November 17, 2015

Skepticism needed

When reviewing court decisions on Medicare issues, be on the alert for the tendency of the courts to misstate the holdings in earlier cases. Two examples come from important decisions on Medicare Advantage reimbursement claims:

In In re Avandia, 685 F.3d 353 (3rd Cir. 2012) the Third Circuit asserted, at p. 363, that the Sixth Circuit in Bio-Medical Applications v. Central States Southeast and Southwest Areas Health and Welfare Fund, 656 F.3d 277 (6th Cir. 2011) had ruled that a claim for reimbursement against a tortfeasor [or his liability insurer] could only be maintained by CMS, and not by a private party under the private cause of action provisions of the MSP statute. Not true. The court in Bio-Medical said, in dictum, that the "demonstrated responsibility" standard that had been recognized in earlier cases, most prominently Glover v. Liggett Group, Inc., 459 F. 3d 1304 (11th Cir. 2006), would apply only to reimbursement claims against tortfeasors, and only when the reimbursement claim was pursued on behalf of CMS under Medicare. But it did not impose either limit on the claim for reimbursement itself.

In Collins v. Wellcare Healthcare Plans, Inc., 73 F.Supp.3d 653 (E.D.La. 2014), the Federal court in Louisiana claimed that the Sixth Circuit, in Michigan Spine & Brain Surgeons, PLLC v. State Farm, 758 F.3d 787 (6th Cir. 2014) (MSBS), had "allowed a MAO-suit for reimbursement to go forward under the Medicare Secondary Payer statute." The implication was that the Sixth Circuit had retrenched on its ruling in Care Choices HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003), issued a decade earlier. In truth, the MSBS decision did no such thing. The decision in MSBS involved another issue entirely: whether liability under the private cause of action provision of the MSP statute could be founded upon a decision by a no-fault carrier denying coverage for a reason other than the insured's entitlement to Medicare. The MSBS court did not mention the issue of reimbursement to a Medicare Advantage plan. It did not, as the court in Collins suggested, overrule the decision in Care Choices, implicitly or explicitly. The Care Choices case was not even mentioned by the court in MSBS. The same is true of the other cases on that question; the decision in MSBS is devoid of any reference to Nott v. Aetna U.S. Healthcare, Inc., 303 F.Supp.2d 565, 571 (E.D.Pa.2004), and it makes only a fleeting reference to the 3rd Circuit's Avandia decision.