Medicare Advantage Plans may be becoming more aggressive in asserting rights under the Medicare Secondary Payer Act (MSPA) in seeking recovery from workers’ compensation, liability (including self-insurance) and no-fault insurers, as well as Medicare Advantage plan enrollees.Medicare Advantage Plans, under Part C of the Medicare program, permit individuals to receive Medicare benefits from private insurers. While these plans cover services offered under Medicare Parts A and B, they additionally cover vision, hearing, dental, health and wellness programs, and most include prescription drug coverage.
In re Avandia Marketing, Sales and Products Liability Litigation, 685 F.3d 353 (3rd Cir. 2012), a court decision arising out of the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey, and Delaware, the Court held that Medicare Advantage Plans may bring private causes of action, including possible claims for double damages, for reimbursement under the MSPA. Specifically, the Court held that the MSPA private cause of action provision places no limitations “upon which private (i.e. non-governmental) actors can bring suit for double damages when a primary payer fails to appropriately reimburse any secondary payer.” Id. at 359. This decision provides Medicare Advantage Plans the same right of recovery as original Medicare (Parts A and B) in jurisdictions falling under the Third Circuit.
Although it is unknown at this time whether other federal district courts will follow suit, this decision essentially strengthens the recovery efforts of Medicare Advantage Plans. As such, primary payers may expect Medicare Advantage Plans to pursue their recovery of reimbursement claims more aggressively. In this regard, primary payers and claims practitioners should take this into consideration in terms of their Medicare compliance procedures. One consideration could include determining what Medicare programs claimants are enrolled in during discovery in a claim or lawsuit. Another consideration would be to ensure that any liens asserted by Medicare Advantage Plans be resolved as part of settlement agreements, and to include protective language in settlement terms and agreements.
