If you have worked with Precision Resolution in the past or have been to any of our lectures, then you know that it has always been our position that Medicare Advantage plans have no rights of recovery against a plaintiff’s settlement proceeds. The case, Aetna Life Ins. Co. v. Guerrera 2018 U.S. Dist. LEXIS 41450 from the District of Connecticut partially confirms that, and disallows the use of the double damages provision of the Medicare Secondary Payer Act’s Private Cause of Action against plaintiffs and plaintiff’s attorneys.
The facts of this case are like many others: Plaintiff Guerrera was injured at a Big Y grocery store. Ms. Guerrera’s medical expenses were paid for by Aetna, a Medicare Advantage Plan. Aetna notified Ms. Guerrera, her counsel, as well as Big Y, of its reimbursement rights in the amount of $9,854.16. Ms. Guerrera then settled her claim against Big Y in the amount of $30,000.00, and Big Y tendered the settlement proceeds to her counsel. Aetna was not reimbursed, and it brought suit against Guerrera, her attorneys, and against Big Y (a self-insured entity), for double damages through the MSP’s Private Cause of Action provision.
The Private Cause of Action reads: “There is established a private cause 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). 42 U.S.C. § 1395y(b)(3)(A).”
The Court addressed two main questions:
- Who may sue under the private cause of action provision?; and
- Who may be sued?
For the first question, the Court followed the lead of the Third Circuit and Eleventh Circuits (see In re Avandia Mktg., 685 F.3d 353 (3d Cir. 2012) and Humana Med. Plan, Inc. v. Western Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016)), and held that Medicare Advantage Plans may bring suit under the Private Cause of Action in appropriate cases.
But the far more interesting question in this decision is: Who May Be Sued? Here the Court held that the intent of Congress in enacting the Private Cause of Action provision, was to only allow suit against a Primary Plan, i.e., an insurance company or self-insured entity.
“The plain language of the Private Cause of Action provision, while admittedly vague, suggests that Congress intended suit against only primary plans. The provision is triggered when ‘a primary plan . . . fails to provide for primary payment (or appropriate reimbursement).’ Had Congress intended to create a cause of action for double damages against beneficiaries who received payment from a primary plan, Congress could simply have created a cause of action when ‘any entity or person’ failed to reimburse an MAO.”
The double damages claims against Ms. Guerrera and her attorneys were therefore dismissed, while the double damages claim against Big Y was allowed to continue. While the holding is significant and limits the application of the Private Cause of Action provision, it is important to note that plaintiffs and plaintiffs’ attorneys are not off the hook.
A few key takeaways here:
- Ms. Guerrera and her attorneys are still defendants in this lawsuit. The federal MSP claims were dismissed, however, Aetna also alleged several state law claims including equitable restitution and breach of contract. The Court retained supplemental jurisdiction over those claims against all parties. *While only a primary plan may be sued, what happens if the primary plan is ultimately determined to be liable for double damages? Did the Plaintiff Beneficiary agree to indemnify and hold the defendant and defendant’s insurer harmless in the underlying settlement? Does this open the Plaintiff beneficiary to future liability vis-à-vis the settlement agreement?
- What does it take for a Medicare Advantage plan to sue? This case involved a relatively small amount at stake. Less than $10,000 in medical expenses were paid by Aetna, but still enough to warrant filing an action in federal court. While this case does impose a limitation on the Medicare Advantage plan’s right to be reimbursed, it still allows a Medicare Advantage plan access to the Private Cause of Action provision.
The troubling aspect of this case, along with the others that came before (most notably in the Third and Eleventh Circuits), is that there is no effort to determine what the Medicare Advantage reimbursement statute actually means. 42 U.S.C. § 1395w-22(a)(4) has its own secondary payer provision solely for Medicare Advantage plans. But the courts continue to ignore its applicability, when it is clear by virtue of the statute’s existence, that Congress intended for MAPs to have their own rights, which are vastly different than those created in the MSP Act (including the private cause of action). We will monitor this decision and any subsequent appeal to the Second Circuit.