Sunday, May 22, 2016

Another court follows Avandia

The U.S. District Court for the Eastern District of Virginia issued a decision in the case of Humana Insurance Company v Paris Blank, LLP on May 10, 2016. The unidentified Medicare beneficiary, identified only as "Enrollee," incurred medical expenses of over $190,000 in a motor vehicle accident. She later recovered a total of $455,600 from several defendants.

The issue presented was whether Humana's Medicare Advantage plan could assert a claim for recovery of its payments. The court considered only the Medicare statutes and regulations; there is no discussion in the opinion about whether Humana's contract language included a right of reimbursement, and no discussion about whether the Medicare statute requires that such language be included. Instead, the court simply accepted Humana's contention that its payments were "conditional payments" under the MSP statute, and it elected to give Chevron deference to the regulation adopted by CMS at 42 CFR 422.108, declaring that MA plans have the same right of reimbursement that CMS has for ordinary Medicare.

The court did cite and consider several of the cases that have held otherwise, including Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146 (9th Cir. 2013) but did not mention Care Choices HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003), the prominent Sixth Circuit decision that requires that an MA plan adopt express reimbursement language before such a right may be enforced.