MWL Wins Major Victory In Fight For Medicare Advantage Recovery Rights

Matthiesen, Wickert & Lehrer, S.C. (“MWL”) partners Ryan Woody and Jim Busenlener won a major victory for Medicare Advantage Organizations (“MAOs”). In Collins v. Wellcare Healthcare Plans, Inc., 2014 WL 7239426 (E.D. La. Dec. 16, 2014), the federal court recognized, for the first time, that MAOs are entitled to bring a Private Cause of Action under the Medicare Secondary Payer (“MSP”) Act against an enrollee who has secured a tort recovery. Id. However, in order to understand the court’s decision, you need to understand the background of Medicare Advantage (“MA”) litigation.


There are currently more than 16 million people (approximately 30% of all Medicare beneficiaries) enrolled in MA plans. The Congressional Budget Office projects MA enrollment to increase to 22 million beneficiaries by 2020. As the population ages and less people are covered by employer-sponsored plans, we anticipate the enrollment in MA plans will skyrocket.

In 1997, Congress created the Medicare+ Choice program as the new Part C in Title XVIII of the Social Security Act. The congressional goal in creating the Medicare Part C option was to harness the power of private sector competition to stimulate experimentation and innovation to create a more efficient and less expensive Medicare system. Even at that time, Congress believed that the Part C option would “continue to grow and eventually eclipse original fee-for-service Medicare as the predominant form of enrollment under the Medicare program.

MA is not private insurance. Instead, Part C plans are funded out of the same trust funds that support Medicare Parts A and B, see 42 U.S.C. § 1395w-23(f), and are governed exclusively by the Medicare Act and its implementing regulations. For people who choose to enroll in an MA plan, Medicare pays the private health plan a set amount every month for each member (“capitation payment”). The capitation payment comes directly from the Medicare Trust. Some MA plans have flexibility in structuring co-payments, deductibles and out-of-pocket costs. For example, plans that require higher out-of-pocket costs than Medicare for some benefits, like skilled nursing facility care, can balance their benefits package by offering lower co-payments for doctor visits. A private plan may use some of the excess payments they receive from the government for each enrollee to offer supplemental benefits. Not only do most MA plans significantly reduce the out-of-pocket cost of healthcare to just a few thousand dollars annually, compared to tens of thousands of dollars an extended hospital stay could cost under original Medicare, they also offer greatly expanded benefit packages, including dental, hearing, podiatry, chiropractic, acupuncture, and vision coverage, as well as health club memberships and other services which are also not covered by Medicare, such as transportation to and from clinic appointments.

Medicare Advantage Recovery Rights

The Medicare Act has been described as “among the most completely impenetrable texts within human experience.” So, with that warning, we proceed to try and wade through its text.

First, MA plans are not governed by state laws. Instead, because the Medicare Part C program is a federal program, operated under federal rules and funded by federal dollars, Medicare Part C expressly preempts state law. See 42 U.S.C. § 1395w-26(b)(3); 42 C.F.R. §§ 422.108(f), 422.402; Do Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1149 (9th Cir. 2010). In fact, in 2003 Congress bolstered the preemption provision in 42 U.S.C. § 1395w-26(b)(3), which now provides:

The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part. 42 U.S.C. § 1395w-26(b)(3).

Medicare Part C specifically gives MA plans a statutory right of secondary payer reimbursement where conditional benefits have already been paid:

Organization as secondary payer. Notwithstanding any other provision of law, a [Medicare Advantage] organization may (in the case of the provision of items and services to an individual under a [Medicare Advantage] plan under circumstances in which payment under this title is made secondary pursuant to section 1395y(b)(2)) of this title, charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section….

(A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or (B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services. 42 U.S.C. § 1395w-22(a)(4).

Later, in a 2004 regulation, Centers for Medicare & Medicaid Services (“CMS”) provided that an MAO “will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP [Medicare Secondary Payer] regulations in subparts B through D of part 411 of this chapter.” 42 C.F.R. § 422.108(f). Accordingly, if the primary plan does not comply with its legal obligation to provide payment or to reimburse an MAO for a secondary payment, the MAO may sue and “recover twice the amount” of the primary payment. Id.; 42 C.F.R. § 411.24(c)(2). In a formal memorandum, CMS later confirmed that MAOs have “the right (and *6 responsibility) to collect” from primary payers using the civil double-damages remedy. CMS, Memorandum: Medicare Secondary Payment Subrogation Rights (Dec. 5, 2011).

Unfortunately, the “may charge” language in the MAO statute led to an early round of litigation over whether this language allowed an MA plan the right to sue the primary plan. The opponents argued that the language did not authorize a cause of action, but only allowed the plans to authorize subrogation in their “Medicare Insurance Policies” or their “contracts” with their members. The Sixth Circuit’s 2003 decision in Care Choices HMO v. Engstrom is a prime example. Care Choices HMO v. Engstrom, 330 F.3d 786, 790 (6th Cir. 2003). After the Engstrom decision, it is fair to say that the Part C organization struggled to recover from primary plans.

Of course, the Engstrom decision suffered from a serious flaw that was not corrected until very recently. As we would later find out, there is no such thing as a Medicare insurance policy. Congress could not have authorized MAOs to place a subrogation provision in their policies, as Engstrom suggests, because an MA insurance policy does not exist. Rather than complete an insurance application, MAO beneficiaries elect an MAO plan by filing an appropriate election form with the organization. MAOs then send out a document describing the Medicare benefits that enrollees receive, known as an “Evidence of Coverage.” That document is written by and may only be altered with the approval of the Secretary of Health and Human Services. So, despite the fact that these court opinions rest on a faulty foundation, they are still cited by opponents today.

Medicare Secondary Payer Act

In an attempt to mitigate ever-rising Medicare costs, Congress enacted the Medicare Secondary Payer (“MSP”) in 1980. See 42 U.S.C. § 1395y(b). Prior to that Act, Medicare “paid for all medical treatment within its scope and left private insurers merely to pick up whatever expenses remained.” Bio-Med. Applications of Tenn., Inc. v. Cent. States SE & SW Areas Health & Welfare Fund, 656 F.3d 277, 278 (6th Cir. 2011). “The Act inverted that system; it made private insurers covering the same treatment the ‘primary’ payers and Medicare the ‘secondary’ payer.” Id. As a result, “Medicare serves as a back-up insurance plan to cover that which is not paid for by a primary insurance plan.” Thompson v. Goetzmann, 337 F.3d 489, 496 (5th Cir. 2003) (en banc). The ability of Medicare to recoup conditional payments that are subsequently recovered from responsible third parties or so-called “primary plans” is a central mandate of the MSP Act.

The MSP Act applies to settlements paid by liability insurance carriers on behalf of tortfeasors sued for a Medicare beneficiary’s injuries. See 42 U.S.C. § 1395y(b)(2)(A)(ii) (defining “primary plan” to include an “automobile or liability insurance policy or plan”). To ensure these “plans” pay first, Congress prohibited Medicare payments for “any item or service to the extent that… payment has been made, or can reasonably be expected to be made,” by a primary plan. 42 U.S.C. § 1395y(b)(2)(A)(i)-(ii). This prohibition applies to any “[p]ayment under this subchapter,” including payments under Part C (the MA program) of Subchapter XVIII of Chapter 7 of Title 42 of the U.S. Code (the Medicare Act). Id.; 42 U.S.C. § 1395y(b)(2)(A); In re Avandia Mktg., Sales Practices & Products Liab. Litig., 685 F.3d 353, 360 (3rd Cir. 2012) cert. denied, 133 S. Ct. 1800, 185 L. Ed.2d 810 (U.S. 2013) (emphasis added). If a primary plan has “not made or cannot reasonably be expected to make payment… promptly,” Medicare (or the MA plan) may make “conditional” payments. Id. 42 U.S.C. § 1395y(b)(2)(B). Thus, the payments are conditioned upon subsequent reimbursement.

MSP Private Cause of Action

The government has its own specific cause of action for double damages in the MSP. However, there is a second, freestanding, provision entitled “Private Cause of Action”.

Under 42 U.S.C. § 1395y(b)(3)(A), a primary plan that fails to comply with its duty to pay for an enrollee’s care (or to provide reimbursement for already-paid-for care) is subject to suit. That statute provides:

There is established a private right of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A) [i.e., Sections 1395y(b)(1) and 1395y(b)(2)(A)].

Notably, there is no limitation on private parties that may sue or who may be sued.

Avandia Decision

In the case of In re Avandia Mktg., Sales Practices & Products Liab. Litig., 685 F.3d 353 (3rd Cir. 2012), GlaxoSmithKline (“Glaxo”) manufactured and sold the Type-2 diabetes drug Avandia, which was a commercial success with sales of $3.2 billion in 2006 alone. Studies revealed, however, that Avandia dramatically increased patients’ risk of heart attack and stroke. Thousands of Avandia patients, including enrollees in both traditional Medicare and MA, filed personal injury actions against Glaxo under state tort law. Thousands of others entered into tolling agreements, deferring suit while they negotiated settlements. In 2010, Glaxo announced that it had settled at least 10,000 claims for roughly $500 million and reserved an additional $3 billion to settle additional claims concerning Avandia and other drugs.

Glaxo acknowledged that it qualifies as a primary plan under 42 U.S.C. § 1395y(b)(2)(A) of the MSP Act because it is a self-insured entity that (through the settlements) has demonstrated its liability for the Avandia-related care of Medicare beneficiaries. In fact, in its settlements with enrollees of Medicare Parts A and B, Glaxo withheld amounts sufficient to provide reimbursement to the government for secondary payer payments. By contrast, in its settlements with enrollees in Medicare Part C, Glaxo denied that the statute required it to provide reimbursement to MAOs for identical secondary payer claims.

As a result, Humana, an MAO, filed suit against Glaxo under the Private Cause of Action. Glaxo argued that Engstrom applied and that Humana’s right to sue was limited to a contractual right of subrogation in its insurance policy. The district court ruled in Glaxo’s favor finding that Humana did not have a Private Cause of Action under the MSP Act. An unanimous panel of the Third Circuit reversed and held that an MAO may sue a primary plan for reimbursement under the plain terms of 42 U.S.C. § 1395y(b)(3)(A) of the MSP Act.

Avandia became a game-changer. Not only did MAOs have the newfound ability to enforce their recovery rights, they had the hammer of double damages.

Parra Decision

In Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146 at 1150 (9th Cir. 2013), the MAO-defendant claimed reimbursement rights for the deceased’s medical expenses from the settlement, which was held in trust pending the outcome of the dispute. Id. In contrast to the Avandia decision, the Ninth Circuit held that an MAO could not bring a claim against a beneficiary’s survivors and seek reimbursement from a wrongful death tort settlement. Id. Again, the Parra court latched onto Engstrom’s prior discussion of Medicare insurance contracts.

“The MAO Statute simply allows PacifiCare to provide via its contracts that its insurance is secondary to other available plans and allows recovery from a primary plan that refuses to reimburse the MAO for payments made on behalf of a participant. In the end, the MAO’s claim thus arises by virtue of its decision to include provisions allowing such recovery in its contract with plan participants.”

However, the Parra court did not squarely address the Private Cause of Action. It noted that GEICO, the primary plan, was not a party to the case and had actually paid the funds. The Ninth Circuit held that the “statute, which allows recovery of double damages, was not intended to apply to a primary plan which, for all intents and purposes, has interpleaded a sum subject to conflicting claims.” Id. at 1155. Parra expressly noted that it was not addressing the situation in Avandia where an MAO directly sues the primary plan. “We need not resolve whether Avandia was decided correctly because it does not aid PacifiCare.”

Parra Causes Confusion

Parra’s discussion of these private MAO contracts has led to state court “contract” actions within in the states of the Ninth Circuit. The first case to test out state court jurisdiction was the Ethridge decision. Estate of Ethridge v. Recovery Mgmt. Sys., Inc., 235 Ariz. 30, 326 P.3d 297 (Ct. App. 2014), rev. denied, (Nov. 6, 2014), (Petition for Cert. filed January 20, 2015). In Ethridge, the Arizona Court of Appeals considered whether an MAO may recover the medical expenses it paid for an enrollee from the settlement proceeds of personal injury claims asserted on behalf of the enrollee. The MAO argued Congress intended for Medicare Part C and its associated regulations to preempt state anti-subrogation laws, while the estate of the deceased enrollee argued preemption did not apply and Arizona’s anti-subrogation doctrine prevented plan reimbursement. The Arizona court found that the regulations promulgated by the CMS Secretary prohibit a state from taking away an MA plan’s right to bill, and grant MA plans the same right to reimbursement for conditionally-paid medical expenses as granted to traditional Medicare. Id. at 302. Based on the regulation, 42 C.F.R. § 422.108(f), the court determined MA plans were permitted to bill an enrollee and seek recovery on that bill in the same way that Medicare may recover from an individual. Id. at 303.

It would be illogical for the regulations to permit a plan to bill an enrollee, but not to recover on the bill. The term “bill” necessarily implies payment of the amount billed.

The court also relied on an additional regulation, 42 C.F.R. § 422.402, which specifically states, “[M]A standards supersede State law and regulation with the exception of licensing laws and laws relating to plan solvency.” Id. at 305. As Arizona’s anti-subrogation doctrine did not fall within either of those exceptions, the court held the MA plan was entitled to obtain reimbursement for the medical expenses it paid from the settlement proceeds received by the estate. The Arizona Supreme Court declined to take the case. However, the plaintiffs have now petitioned the U.S. Supreme Court for Certiorari.

The Ethridge decision notwithstanding, Parra unfortunately emboldened our opponents to oppose MAO claims. Or, at a minimum, it has allowed them to assert that there is a conflict of authority on whether an MAO has a cause of action to enforce its secondary payer status.

The Sixth Circuit’s Decision in Michigan Spine

Although Parra has been a difficult pill to swallow, Avandia has launched a new optimism under the Private Cause of Action. Remember that the Private Cause of Action does not specify who may bring suit – just that it is not the government. As such, both enrollees and medical providers have jumped on board and filed actions seeking double damages against primary plans who have failed to pay promptly. Michigan Spine & Brain Surgeons, PLLC v. State Farm Mut. Auto. Ins. Co., 785 F.3d 787, 793 (6th Cir. 2014) was such a case.

The Michigan Spine case arose out of an October 26, 2010 auto accident in which State Farm’s insured, Jean Warner, sustained injuries. Following the accident, Michigan Spine provided approximately $26,000 of neurological treatment to Warner. Michigan Spine submitted the claim to State Farm, but State Farm denied coverage stating that Warner’s medical condition was the result of a pre-existing condition. Thereafter, Michigan Spine submitted the claim to an MAO, which approved a conditional payment of approximately $5,000 pursuant to the MSP Act. Looking to recoup the additional $21,000 that remained outstanding on its bill, Michigan Spine sued State Farm under the MSP Private Cause of Action. State Farm argued that it could not be held liable under the Private Cause of Action because it was not a “group health plan”. Without getting sidetracked by a nuanced discussion of State Farm’s argument, the Sixth Circuit disagreed and held that the Part C provider had standing to sue and that the Private Cause of Action was not limited to claims against “group health plans” but applied to all “primary plans”. In addition, the court held that State Farm’s argument that the injury was due to a pre-existing condition was not a defense to the Private Cause of Action.

The takeaway for me is that all primary plans can be sued if they fail to pay. They can be sued for double damages by medical providers who have been underpaid, enrollee’s whose bills have gone unpaid, and by MAOs who have paid those bills.

Humana v. Farmers Texas

Humana Ins. Co. v. Farmers Texas Cnty. Mut. Ins. Co., No. 13-CV-611-LY, 2014 WL 6663522 (W.D. Tex. Sept. 24, 2014) is a new Avandia-styled case pending in the Western District of Texas in Austin, Texas. Humana, as an MAO, sued Farmers Texas Cnty. Mutual Insurance Company (“Farmers Texas”), a no-fault carrier. Six enrollees elected to receive MA benefits from Humana. Subsequently, each enrollee was injured in a motor vehicle accident and received medical treatment. Unbeknownst to Humana, each enrollee also was insured at the time of their accident under a policy issued by Farmers Texas. However, instead of submitting the medical bills to Farmers Texas, the providers billed Humana. Humana alleged that Farmers Texas was a primary plan that owed reimbursement of Humana’s conditional benefits. This case presents the same type of challenges involved in the Avandia case.

Farmers Texas moved to dismiss the action arguing that Humana does not have a Private Cause of Action under the MSP Act. The Magistrate Judge agreed and recommended dismissal. However, on September 24, 2014, the District Court Judge overruled the Magistrate’s recommendation. The district court went on to adopt the Avandia holding. The Court went on to state that “any private plaintiff with standing may bring an action” under the Private Cause of Action.

Collins v. WellCare

That leads us to the Collins case argued by MWL. Collins v. Wellcare Healthcare Plans, Inc., 2014 WL 7239426 (E.D. La., Dec. 16, 2014). Every case we’ve looked at so far has dealt with a claim against the primary plan with the exception of Parra, which was decided against the MAO. Fortunately, MAOs now have a strong rebuttal to the Parra decision.

This case involved an enrollee in WellCare’s MA plan who had settled a personal injury lawsuit after WellCare had advanced approximately $180,000 in conditional benefits. Despite WellCare’s numerous accident questionnaires, the enrollee never responded nor disclosed the existence of a lawsuit. Instead, after she settled her case, she reserved the amount of the lien in a trust account and then filed a declaratory judgment against WellCare in Louisiana state court. The lawsuit sought to extinguish WellCare’s lien arguing that it had no right to a lien under federal law and that under state law its claim was prescribed (the statute of limitations had run). WellCare removed the case to federal court in New Orleans and filed a counterclaim under the MSP Private Cause of Action.

As an initial matter, WellCare argued that the enrollee’s declaratory judgment lawsuit must be dismissed because she did not first go through the mandatory administrative appeal process for Medicare disputes. The Court agreed holding that under 42 U.S.C. § 405(h) all Medicare enrollees, even those in MA plans, must first exhaust their claims under the administrative appeal process. Only then, after that five-layer process has been exhausted may the enrollee file suit. And if suit is filed, it must be filed in a U.S. District Court, and the suit must be against the Secretary and not the MAO. As such, the Court dismissed the enrollee’s lawsuit.

The Court turned next to WellCare’s counterclaim under the Private Cause of Action. The enrollee argued that WellCare’s claim failed because she was not a “primary plan”. So, even if the Court agreed with the Avandia decision, the enrollee reasoned that an MAO cannot sue the enrollee directly – only the primary plan. The enrollee cited to the Parra case, which was the only case that involved a claim by an MAO against the enrollee to support her argument that there was no Private Cause of Action against the enrollee. The enrollee also argued that the Engstrom decision held that there was no implied cause of action in the MAO statute’s “right to charge” provision and that WellCare’s only remedy would have been to put a subrogation provision in its contract.

In answering the question, the Court first looked to the MAO statute’s “right to charge” provisions and considered the Engstrom decision. The Court noted that Engstrom’s rationale was dubious considering that it rested on the premise that there was a “Medicare Insurance Policy” when in fact there is no such thing. However, the Court did not answer whether the MAO statute created an implied cause of action because it held that the Private Cause of Action in the MSP was applicable.

The Court adopted the Avandia holding. It noted that the existence of private Medicare risk-sharing plans pre-dated the enactment of the MSP Act. It observed that there was no limited language in the MSP Private Cause of Action that would exclude Part C. Thus, it had no difficulty concluding that MAOs are included within the purview of parties who can bring a Private Cause of Action under the MSP Act. The Court also noted that the regulations and CMS memorandum supported this interpretation.

Finally, the Court concluded that there was no obstacle to suing the enrollee directly where the primary plan had made payment to her. The fact that the money changed hands from the tortfeasor or his insurer to the beneficiary does not alter the nature of the settlement funds. To hold otherwise, the Court concluded, produces an odd result, as that interpretation would encourage beneficiaries to hide their settlements from the MAOs and provide no recourse to the MAOs against the beneficiaries for such action.

The only downside of the decision is that the Court did not award double damages. Although it found double damages automatically available under the Private Cause of Action, it held that the enrollee’s preservation of the funds in trust mitigated against such an award. Presumably, this rationale would not apply to claims against an enrollee who fails to preserve the funds in trust or against primary plans who have failed to reimburse the MAO altogether. The Collins Court is now the second court within the Fifth Circuit to follow the Avandia decision regarding the availability of the Private Cause of Action.

Humana v. Western Heritage

If the Collins decision was not enough good news, a District Court in Miami just issued another powerful MAO decision. Humana Medical Plan, Inc. v. Western Heritage, Ins. Co., 1:12-cv-20123-MGC (S.D. Fla., March 16, 2015). For those of you who remember, this case stems from a prior case filed by Humana against the enrollee, Mary Reale, but was later dismissed. In this case, however, Humana elected to pursue the liability carrier, Western Heritage, under the Private Cause of Action for double damages. In 2009, Western Heritage settled a personal injury claim brought by Mrs. Reale for $115,000. In the settlement agreement, Reale represented that there were no liens against the proceeds. In fact, Humana had advanced $19,155.41 in benefits under Medicare Part C. When it found out about the settlement, Humana notified Western Heritage of its lien rights and Western Heritage attempted to place Humana on the check to Reale. A state court judge subsequently ordered Western Heritage to issue the check without Humana included as a joint payee. After a suit against Mrs. Reale stalled, Humana filed this action against Western Heritage.

In its March 16, 2015 decision, the district court sided with the Third Circuit’s decision in Avandia that MAOs are included within the parties who can bring a Private Cause of Action. The Court distinguished the Ninth Circuit’s Parra decision factually, noting that “PacifiCare’s claim for relief [was] not against the insurer, or even against Parra’s estate for sums received from a primary plan for medical expenses, but rather against the Survivors and their claim to this disputed res.” pp. 7-8, quoting Parra at 1154. The Court went on to conclude that Western Heritage was liable to Humana as a “primary payer” when:

Western Heritage, as Hamptons West’s liability insurer, entered into a settlement agreement with Mrs. Reale to resolve all personal injury claims she had against Hamptons West. That settlement agreement, wherein Western Heritage reimbursed Mrs. Reale for medical expenses she incurred as a result of injuries she sustained at Hamptons West, demonstrates Western Heritage’s responsibility under the MSP Act to reimburse Humana for the Medicare benefits it paid on behalf of Mrs. Reale. Thus, Western Heritage is a primary payer under the provisions of the MSP Act and is responsible for reimbursing the Medicare benefits Humana advanced, even in light of its agreement with Mrs. Reale settling all claims. See Brown v. Thompson, 374 F.3d 253 (4th Cir. 2004) (finding that Kaiser Health Plan acted as a primary plan within the meaning of the MSP Act when it paid out settlement proceeds in a medical malpractice lawsuit, thus triggering Medicare’s right to reimbursement); see also Medicare Managed Care Manual, Ch. 4, § 130.3 (“Secondary payer status can also be triggered due to legal settlements…the MAO is the secondary payer for an MA enrollee when the proceeds from the enrollee’s no fault or liability settlement is available.”). Id. at p. 9.

The Court went on to award double damages against Western Heritage finding that it was sufficiently on notice of Humana’s claim.

It is fair to say that MAOs are gaining momentum from these recent decisions. Similar victories are also trickling their way through the Sixth Circuit following that Court’s recent decision in Michigan Spine.

On February 24, 2015, Ryan Woody presented a complementary webinar entitled “Medicare Advantage Update: Enforcing Your Rights Under The Medicare Secondary Payer Act.” For those of you who may have missed this webinar, the recorded version of this webinar, which you can view at no cost, can be found on our website’s Webinars page or you can click HERE to view it.

If you or your company have questions about MA recoveries or would like to know more about MWL’s approach towards MA litigation, please contact Ryan Woody at for more information.

Ryan L. Woody

Ryan L. Woody is a litigation attorney and partner with Matthiesen, Wickert & Lehrer, S.C. Ryan’s practice focuses on large loss subrogation and defense, Medicare Advantage, ERISA reimbursement, lien resolution, healthcare litigation, and appeals. Ryan is a frequent national speaker on insurance coverage, ERISA and health insurance, and workers’ compensation subrogation.