*3 PRYOR, BLACK Before WILLIAM PARKER,* Circuit Judges. BLACK, Judge: Circuit Insurance Heritage Defendant Western (Western) court’s appeals the Co. district in fa summary judgment granting order Plan, Inc. Humana vor Plaintiff Medical (Humana) for double on Humana’s claims damages Sec pursuant the Medicare (MSP) ondary Act cause of Payer private 1395y(b)(3)(A), and for declaratory judgment West regarding Humana for ern’s to reimburse obligation on paid Medicare benefits Humana Shohl, Abate, & P. Dinsmore Michael en- Advantage plan of Medicare behalf its Louisville, Kuntz, KY, Jeffrey T. LLP, requires the Court rollee. This case PA, Alter, Fort GrayRobinson, Daniel impression matter of decide as a first Kuo, Lauderdale, FL, Thomas H. Eileen this circuit whether MSP Russell, PLC, Lawrence, Lawrence & Advantage permits TN, Schiff, Humana, Caroline L. Memphis, (MAO) pay Organization to sue a IL, Inc., Chicago, Plaintiff-Appellee. for the MAO er refuses reimburse Collins, Third Circuit Russo, secondary payment. F. The Lewis Anthony John Schoel, and con Philip Butler Weih- Jr., previously considered issue William LLP, FL, Craig, Tampa, Neil Katz an MAO muller cluded that sue Breitman, Selman, Los Ange- H. Selman payer under CA, les, Capabianco, J. Selman Jennifer Prac action. Avandia Sales Mktg., In re Francisco, LLP, CA, Breitman, San F.3d Litig., & Liab. tices Prods. Defendant-Appellant. (3d 2012). reyiew, agree After the order the Third Circuit and affirm Farber, King Spalding, & Joseph
David of the court. district DC, Amici LLP, Washington, Curiae Coalition, Property Casual- Marc The I. BACKGROUND America. ty Association of Insurers MAO, providing as an operates Humana Woody, Wickert & Ryan Lee Matthiesen (also coverage known as Medicare Part C WI, Lehrer, SC, Hartford, David John plan) to Medicare- PSC, Louisville, Advantage a Medicare Kolb, & Sharps, Gibson * Parker, Jr., sitting by designation. Barrington United D. Honorable Circuit, Judge Second Circuit for the States
eligible receiving enrollees in return a MSP. The district court later vacated per capita the Centers for fee from Medi- order after Humana moved the district (CMS). care & In Medicaid Services Janu- court to correct or amend the order. The Reale, ary Mary Humana Medicare district hearing court scheduled a to con- enrollee, Advantage plan injured was at sider Humana’s motion.' On the date of the Hamptons West Condominiums. Ms. Reale hearing, voluntarily Humana dismissed its sought injury, medical treatment for her action against Reales and their attor- providers and her medical billed Humana. ney. $19,155.41. paid
Humana suit, Perhaps response Humana’s In June Reale and her Ms. hus- Western Hamptons attempted West Hamptons band sued West Condominium make payee Humana a on the settlement *4 West) Association, (Hamptons in Inc. Flor- draft to the Reales. Reales refused injury. ida state court for her In March 25, May and on sought sanctions 2010, while the suit was pending Reales’ against Hamptons failing West for to com- light and in a pending of settlement be- ply agreement. with the settlement There- Reales, Hamptons tween and the West after, Hamptons agreed stipu- West to a Humana Organiza- issued to Ms. Reale an lated order under which Humana would tion Determination the amount of check, payee not be a on the but the $19,155.41.The for basis Humana’s reim- $19,155.41 attorney Reales’ hold would MSP, request bursement was the under trust pending resolution of the liti- Reales’ which payments secondary are gation. Hamptons West and Western ten- and reimbursable if other insurer— $115,000. dered the liability even a tortfeasor’s insurer —is lia- 4, 2010, On the June Reales sued Huma- 1395y(b)(2); ble. See 42 U.S.C. see also na in seeking state court declaration 1395w-22(a)(4). §id. Although an adminis- to the they amount owed Humana. Apply available, appeal process trative was no ing Florida regarding law collateral indem party appealed Organization Humana’s nity subrogation, and the trial court held Determination. $3,685.03. that Humana was entitled to See 20, 2010, April $115,000 On in return for Plan, Reale, Humana Med. Inc. v. from Hamptons liability and its West in- (Fla. 2015). 195, So.3d 3d DCA Huma surer, Western, the Reales released 2015, na appealed, and December Flori Hamptons West and Western. The Reales da’s Third Court Appeal District of re represented in agreement the settlement jurisdiction. 197, versed lack of Id. at for that there was no Medicare other lien 199. The court held Act right subrogation. The Reales also creates an exclusive federal administrative agreed indemnify Hamptons West and process under which Medicare Advan Western against any Medicare or other tage plan appeals through enrollee CMS right lien or to subrogation. an MAO’s denial benefits or request at 204-05. 7, 2010, Upon reimbursement. Id. ex May
On Humana sued the their, process, haustion of the administrative attorney Reales and in the Southern judicial Medicare Act provides District federal seeking of Florida reimbursement $19,155.41. expressly preempts review and of the state law. On defendants’ mo- tion, Therefore, according court, the district to the Flor court dismissed Humana’s complaint subject jurisdiction adjudicate lack ida courts lack juris- matter diction, holding dispute that an Humana MAO does not between and Ms. private have a regarding cause action to Reale her Medicare Advantage recover a beneficiary reimbursement from benefits. 209. under Id. at 2006). “Summary judgment appro- Cir. Having to secure reimbursement failed 2011, priate only genuine if there is no issue Reale, Huma- in December from Ms. the moving party material fact and is enti- reimburse Hu- that Western na demanded matter judgment tled to as a of law.” January On secondary payment. mana’s Developers, Cty., Hallmark Inc. Fulton sued Humana Western Ga., 2006); 466 F.3d proceeds. upon appeal 56(a). R. P. see also Fed. Civ. counts: Count One pled three Humana damages under MSP sought double III. DISCUSSION action, 42 sought de- 1395y(b)(3)(A); Count Two considering Before whether statu- claratory relief under the Medicare to an private cause action is available scheme; so, and Count tory regulatory and, if MAO on these facts whether sought damages several state Three summary judg- Humana was entitled including unjust Act, enrichment ment, theories law introduce the Medicare we first implied by law. Western MSP, a contract Advantage pro- the Medicare dismiss, among arguing moved to gram, pertinent regulations. CMS permit things that the MSP does Statutory Regulatory A. Back- In cause of action. bring
MAO to *5 ground order, court the district de- an endorsed dismissing part, motion in nied Western’s of A Traditional Medicare consists Parts finding but that Hu- state law claims B These and the Medicare Act. are the pled question re- adequately mana had entitling provisions eligible fee-for-service private the MSP cause of garding whether directly pay medical persons to have CMS is to an MAO. action available providers hospital outpatient for their and Advantage care. Part C is Medicáre 29, 2014, Humana moved December On Médicare-eligible 16, program under judgment. March summary On (rather may elect to have an MAO persons 2015, summary granted court district CMS) provide than Medicare benefits. Humana, finding judgment favor cov- prescription drug Part D provides is avail private cause of action erage, generally appli- Part E contains and Humana is enti and able to MAO $38,310.82. One such damages, Huma cable definitions to double exclusions. tled Plan, MSP. Heritage exclusion is the Inc. v. Ins. na Med. W. 2015). (S.D. Co., 1285 Fla. F.Supp.3d 94 1. The MSP judgment in fa
The district court entered Humana, appealed. vor Western more than insurer Frequently, one For individual’s medical costs. liable for an II. STANDARD OF REVIEW -victim be example, a car accident expenses from recover medical grant de or entitled to We review novo health insurer tortfeasor’s summary judgment, viewing all both her denial liability To address such situa- light in the insurer. facts and inferences reasonable tions, liability allocates between nonmoving party. to the most favorable insurers, Inv’rs, other known Medicare and Capital Susquehanna II v. Bridge (11th 1212, “primary plans.”1 F.3d 1215 Corp., Radio reasonably expected plan, or can “primary plan” group is a health 1. A law, compensation or worker’s automo- for an item service. make liability policy plan, bile or other insurance § U.S.C. insurance, plan that no-fault or self-insured paid primary plan. Before “Medicare for all med- Id. 1395y(b)(2)(B)(iii); see scope ical within treatment left also 42 (describing C.F.R. 411.24 a Gov- pick private merely up insurers whatev- ernment cause of against er expenses Applica- remained.” Bio-Med. plan or person that received a Tenn., tions Inc. v. Cent States Se. & primary remaining payment). portions The Fund, Sw. Health Areas & (2)(B) of paragraph establish United Welfare 2011). effect, In F.3d subrogation States’ rights in the event of a when a private Medicare and insurer were secondary payment, 1395y(b)(2)(B)(iv), expenses, both for the same liable Medi- permit to waive the condi- partially care satisfied pri- satisfied tional rules under some circum- In obligation. vate insurer’s in an stances, 1395y(b)(2)(B)(v), establish a rising Medicare, effort to curb costs period, 1395y(b)(2)(B)(vi), limitations MSP, Congress enacted the which “invert- and create a disclosure mechanism to help system; ed that it made insurers primary plans they determine whether covering the same treatment the ‘primary’ reimbursement,, owe payers ‘secondary’ and Medicare the pay- (2)(B) § 1395y(b)(2)(B)(vii). Paragraph er.” Id. Medicare benefits became an enti- does not mention MAOs and refers almost resort, only last available if tlement of no exclusively to the Secretary, the United private insurer was liable. States, and the Medicare fund. trust MSP, 42 1395y(b), is locat- (3)(A), Paragraph entitled “Private E ed in of the Act. Part Para- action,” cause of states as follows: regarding creates rules group is established a There § 1395y(b)(l). health plans. (which damages action for shall be in an (2) establishes Medicare’s status as a sec- amount double the amount otherwise ondary plan. to a payer Para- *6 provided) in the primary plan case of a (2)(A) is a general prohibition which to primary pay- fails for against making payments Medicare (or reimbursement) ment in a primary items or services for which plan with paragraphs accordance and paid reasonably expected has can or to (2)(A). pay. 1395y(b)(2)(A). Paragraph Id. (2)(B), payment” 42 pri entitled “Conditional The MSP exception cross-referenced as the sole to vate a qui cause of action is not tam (2)(A), paragraph describes the circum- statute but available a to Medicare bene procedures stances and under which Medi- ficiary primary plan paid whose has not care can make a conditional not- the beneficiary’s Medicare or healthcare withstanding secondary payer. its status as provider. Stalley ex rel. United States v. §Id. 1395y(b)(2)(B). Inc., Reg’l Sys., Orlando Healthcare 524 (11th 1229, 2009); F.3d 1234 Cir. see also (2)(B), paragraph
Under when the pri- Inc., 1304, Glover Liggett Grp., 459 F.3d mary duties, plan does not fulfill its the (11th 2006) 1310 (explaining Cir. that the Secretary of Health & Human Services MSP private cause of action is available may amake conditioned on reim- “against pays primary plan judg that a Id. 1395y(b)(2)(B)(i). bursement. If the ment or settlement to a Medicare benefi payment, makes a conditional share”). ciary, pay to but fails Medicare its primary plan must reimburse the Sec- retary. 1395y(b)(2)(B)(ii). pri The Sixth holds that the MSP Circuit (2)(B) vate action also establishes and defines a cause of is also available to Gov- ernment cause action to recover from a provider paid healthcare who has been
1235 2016). risen percentage has This gust Brain & Spine Mich. plan. by 2004. See every year Auto. since Farm Mut. PLLC v. State Surgeons, 2014). Co., F.3d Ins. MSP, to the a reference Part C includes addressed explicitly have not Although secondary pay- as “Organization entitled supports implicitly issue, law case our follows: er,” states as which Glover, at 459 F.3d proposition. Cf. Notwithstanding any other provision private the MSP (suggesting law, organization + Choice a Medicare encourage private “to was intended action (in provision of case of the non-payment aware of who parties are an under services to individual items and to enforce bring actions to plans circum- + Choice under a Medicare rights”). Medicare’s payment under stances which program Advantage 2. The secondary pursuant subchapter is title) of this 1395y(b)(2) to section C, as the also known Part provider of such or charge authorize was enacted Advantage program,2 charge, in accordance af- years services MSP and years after law, plan, action.3 allowed charges private cause ter the Medicare section— creating such policy described “Congress’s goal harness the program was Advantage (A) carrier, employer, the insurance competition sector power- law, plan, under such entity othér innovation experimentation stimulate pay provision policy is to fihe effi- a more ultimately create would services, or such sys- expensive cient less (B) to the extent such individual Avandia, at 363 685 F.3d re tem.” In under such paid has been the individual 105-217, at 585 Rep. No. (citing H.R. law, services. policy such plan, or 176, 205-06 (1997), 1997 U.S.C.C.A.N. 1395w-22(a)(4). In several (Conf. Advan- the Medicare Rep.)). Under cases, an MAO contended compa- insurance tage program, 1395w-22(a)(4), called the sometimes MAO, an as administers ny, operating creates provision, “right-to-charge” MAO pursuant benefits provision of Medicare for an implied an federal the MAO pays CMS. CMS a contract with but secondary payments, MAO to recover enrollee, the MAO per a fixed fee See, argument. rejected this have courts the same at least benefits provides *7 Inc., 715 of Ariz., e.g., Parra v. PacifiCare traditional receive under enrollee would (ex 2013) 1153, 1146, 1154 Cir. F.3d (9th( 1395w-22(a), §§ Medicare. See pro right-to-charge MAO that the plaining 2015, Medicare-eligi- of 31% 1395w-23. In is coverage when “describes MAO vision in a Medi- were enrolled individuals ble insurance, permits and secondary to other Ad- Advantage program. Medicare care to include (but require) a[n] not MAO does Total as a Percent vantage Enrollees of recovery allowing plan provisions in its Henry J. Kaiser Population, does [It] plan.... primary a against Foundation, http://kff.org/ Family of favor of cause a federal create medicar e/state-indicator/enrollees-as-a-of- v.Eng- MAO”); HMO (last Choices Au- Care a[n] visited total-medicare-population 1395w-21-1395ww-28); 99- L. No. Pub. orig- §§ Advantage program was The 2. (codified 9319, 509, as 1874 Stat. § 100 + inally Medicare Choice. called L. 1395y(b)); Pub. U.S.C. at 42 amended (codified 96-499, 953, 94 Stat. 2599 105-33, 4001, No. 111 Stat. No. 3. See Pub. L. 1395y(b)). at 42 U.S.C. amended (codified U.S.C. at 42 as amended 251 1236 2003)
strom, argues 790 mana private 330 F.3d that the MSP cause conclusion as to 42 (reaching similar of broadly action is unambiguous per- 1395mm(e)(4), which U.S.C. (in- addresses mits private party with standing secondary payment Medicare-substitute MAO) cluding an primary plan. to sue a HMOs); Healthcare, Nott v. Aetna U.S. The district court concurred with the (E.D. Inc., 565, 571-72 F.Supp.2d 303 Pa. Third analysis private Circuit’s of the MSP 2004) (concurring with Care Choices HMO cause of action and held that “[t]he statu- as to provi- both the HMO and the MAO tory text of Act clearly the MSP indicates sion). that MAOs are included within the pur- view parties may of bring private who B. Rights An MAO’s Under the MSP cause of agree. action.” We case, In this Humana contends that Supreme United States Court re- plan MAO can a primary sue under the cently analysis described our threshold private which is statutory interpretation as follows: available “in of a primary plan the case provide primary which fails to If statutory language is plain, we (or reimbursement) appropriate in accor must according enforce it to its terms. (1) (2)(A).” paragraphs dance with But meaning oftentimes the ambi- —or § 1395y(b)(3)(A). U.S.C. Humana’s conten guity phrases certain may words —of appears comport tion with regula CMS only placed become evident when in con- tions, provide which that an MAO “will deciding text. So when whether the lan- rights exercise the same to recover from a guage plain, we must read the words primary plan, entity, or individual that the in their with context and a view to their Secretary under regu exercises place in statutory the overall scheme. B subparts through lations D part duty, all, Our is to after construe stat- chapter.” 42 C.F.R. utes, provisions. not isolated 422.108(f). subpart B part Under — King Burwell, U.S. -, 135 S.Ct. chapter regulations CMS identify (2015) 2489, 192 (quota L.Ed.2d 483 two causes of action available to the Secre omitted). tion marks citations We tary: one against primary payer and one therefore read the MSP against any entity (including a beneficiary) action in the context of broader Medi primary payment. receives a care Act. 411.24(e), §§ Thus, C.F.R. 411.24(g). ac- The MSP cause of action is avail- CMS, cording an MAO pri- sue a able “in the case mary plan beneficiary or an MAO (among others) (or fails to primary payment the MSP. reimbursement) in accordance Although believes MAOs (1) (2)(A).” paragraphs may sue in federal court to recover reim- § 1395y(b)(3)(A). Paragraph regulates bursement from plan, MAOs *8 group plans health and is not at issue in have no cause of action absent a statutory 1395y(b)(l). § this case. See id. Paragraph Sandoval, basis. See Alexander 532 U.S. (2)(A) “primary plan” defines and bars 275, 286-87, 1511, 1519-20, 121 S.Ct. payment including an MAO (2001). L.Ed.2d 517 Humana does not con- — payment is a primary plan. there tend that the right-to-charge provi- MAO —when § 1395y(b)(2)(A). See id. excep- The sole sion implied creates an cause of action. (2)(A) prohibition paragraph Nor tion to the in does contend Humana that an MAO may avail 1395y(b)(2)(B)(iii), payment para- itself of the conditional scheme in the (2)(B). Rather, Government’s of action. cause Hu- See id. contrary reading as (2)(A) reject Western’s not ex- We does paragraph
Although pro- pertinent plain language the the to make to plans primary obligate pressly (2)(A) First, unambigu- paragraph “primary visions. term defined the payments, payments, to all existing obligation ously refers an presupposes plan” contract) pay to for include both traditional (whether which by statute In re Advantage plans. There- See id. See and Medicare covered items services. 360; Avandia, to F.3d at fore, plan “fails a primary (or “[p]ayment (regulating reim- 1395y(b)(2)(A) payment primary Second, bursement) para- the MAO subchapter”). in accordance under ' (2)(A),” parenthetically it fails to honor provision when right-to-charge ... graph ] ob- which MAO statutory or contractual refers to circumstances underlying the secondary pursuant are “made payments ligation. 1395w- 1395y(b)(2).” to section togeth- Thus, work paragraphs three added). 22(a)(4) reading A plain (emphasis comprehensive er to establish (2)(A) right-to- the MAO paragraph (2)(A) priori- alters Paragraph scheme. reveals charge provision therefore entities and already-obligated among ty secondary to are made payments MAO their fulfilling primary plans contemplates MSP, to the payments primary pursuant, (2)(B) ad- Paragraph obligation. payment provision. right-to-chkrge not the MAO Secretary’s options when dresses not suggests the MSP does This alone payment to fulfill plan fails primary paragraph in limit (3)(A), pri- the MSP Paragraph obligation. (3)(A) Medi- traditional to cases which action, grants private actors vate cause secondary payer. is the care fails remedy primary awhen a federal thereby' obligation, (2)(B), fulfill its sole to paragraph fact that secondary-payer scheme undermining the (2)(A), to the refers paragraph exception (2)(A). by paragraph created analysis. See not Secretary does alter our (authorizing the Sec 1395y(b)(2)(B) fits how an now MAO consider We must payment when retary to make conditional an and whether MSP scheme within the or cannot not made plan “has primary itself the MSP may avail MAO *make [prompt] reasonably expected (3)(A). paragraph West- of action cause (2)(B) does if paragraph Even payment”). gov- does not that the MSP suggests ern MAOs,4 paragraph neither apply not right- the MAO at all and that ern MAOs (3)(A) (2)(A) contain paragraph nor when governs to-charge provision instead paragraph language found: limiting secondary pay- an MAO is and whether (2)(A) (2)(B). sec Western, because According to establishes er. for Medicare status all ondary payer status from payer secondary MAO derives with reference plan” “primary defines rather provision right-to-charge the MAO Thus, a primary obligations. pre-existing MSP, may not sue under an MAO than the fails to make plan that cause of action. government's cause 1395y(b)(2)(B)(iii), argue do parties do not 4. The payers, recovery from whether the Government consider damages.”); double (2)(B) provides also in- paragraph was action described ("The 411.108(f) will ex- [MAO] re 42 C.F.R. See In available to MAOs. to be tended pri- rights from ("Because to recover Avandia, the same ercise n.18 F.3d at 364 entity, individual mary plan, parity clearly there to be Congress intended *9 regula- Medicare, the MSP Secretary exercises under MAOs and traditional between ...”). tions. support for our decision find additional has failed to do so “in accordance with (3)(A), We conclude that paragraph (1) (2)(A),” paragraphs regardless MSP permits an secondary payer whether the is the Secre MAO to sue a primary plan that fails to tary § or an MAO. Id. reimburse an secondary payment. MAO’s (3)(A) Heritage dispute
Western
does not
broadly
is
available “in
may
an
a secondary payment.
MAO
make
the case of a primary plan which fails to
right-to-charge provision
The MAO
con-
(or
primary payment
appropri
1395w-22(a)(4)
right.
firms this
See id.
reimbursement)
ate
in accordance with
(establishing an
right
charge
MAO’s
to
(2)(A).”
paragraphs
plan “under
pay-
circumstances
§ 1395y(b)(3)(A).We have held that para
ment under
subchapter
is made sec-
(3)(A)
is not a qui tarn statute but is
ondary pursuant
1395y(b)(2)”).
section
only
instead available
plaintiff
when the
Fulfilling
duty
our
to “read the words in
injury
suffered an
Stalley,
fact. See
their context and with a view
place
to their
fits to which would be entitled under We see no basis to exclude MAOs Medicare.); traditional 1395w- from a broadly provision worded that en 22(a)(2)(A) (An MAO satisfies 1395w- plaintiff ables a to vindicate harm caused 22(a)(1)(A) if “provides payment it in an by a primary plan’s failure to meet amount ... equal to at least the total MSP payment or reimbursement dollar amount of ... as would obligations. above, As stated ap otherwise be parts authorized under A and plies to MAOs. An statutory MAO has a ”). words, B.... In if the Secretary right charge a primary plan when an pay would “X” amount for covered service MAO secondary pursu ' “Y,” an then MAO pay must also “X” ant the MSP. 42 U.S.C. 1395w- amount for covered service “Y.” See id. 22(a)(4); see also 42 C.F.R. 422.108 Thus, Part C of the Medicare Act prohibits (elaborating upon an right MAO’s avoiding MAO’s paying benefits when- charge a primary plan and means of recov ever pay would under tradi- ering secondary payment). In such a tional Medicare. Collectively, provi- these case, plan’s failure to make sions clarify Congress empowered primary payment or to reimburse the (and perhaps obligated) MAOs to make MAO causes injury the MAO an in fact. secondary payments under the same cir- Therefore, an MAO avail itself of the cumstances Secretary. as the See id. cause of action pri when a 1395w-22(a)(l)(A), §§ 1395w-22(a)(2)(A), 1395w-22(a)(4). mary plan fails to Thus, primary payment make an MA.0 both has secondary payer or to reimburse the secondary pay status and can make MAO’s re- imbursable secondary payments. ment.
1239
Summary
precise
Ms.
Entitlement
to
discern
nature of
Reale’s
C. Humana’s
coverage.
health insurance
Fla. R.
Judgment
See
Civ.
(“A
1.280(b)(2)
may
party
P.
obtain discov-
may
Having found that Humana
the existence
of
ery
any
and contents
claim under the MSP
bring its
agreement
any person may
under which
action, we must decide whether
satisfy part
judgment
liable to
or all of a
summary judg
Humana was entitled to
be entered
tile action or to
favor on
claim. The MSP
ment in its
indemnify
to
for
party
pay-
or
reimburse a
permits
an award of
private cause of
made to satisfy
judgment.”);
ments
42
plan
when a
fails
damages
primary
double
422.108(b)(3)
MAOs
(requiring
C.F.R.
to
appro
provide
primary payment
to
for
or
payers);
benefits
primary
coordinate
priate
reimbursement.
42
Int’l, Inc.,
v.
United States Baxter
345
Thus,
is enti
plaintiff
a
cf.
2008) (“[W]hen
866,
F.3d
summary
on a
judgment
tled
to
primary
pays,
pri-
claim
there is no
insurer later
Medicare’s
1395y(b)(3)(A)
when
(1)
genuine
regarding
of material
payment
normally
issue
fact
or
will
be a matter of
fact.”).
primary plan;
status
a
defendant’s
ascertainable
Western therefore
(2)
provide
tu
for
the defendant’s failure
knowledge
constructive
had
Humana’s
appropriate
or
reim
primary
payment.
Medicare
(3)
bursement;
damages
amount.
reject
We
Western’s contention
with the
court
agree
We
district
for
provided
appropriate
that it
reimburse
plan
a
Western
$19,155.41
by placing
pend
ment
trust
into
liability
a
1395y(b)(2)(A) because it is
ing
dispute
resolution of the
between Ms.
that,
agree
under a
insurer
settlement
Reale and Humana. The MSP
Reale,
ment,
Ms.
Advan
paid
a Medicare
cause of action
not describe
does
what
enrollee,
tage
medical ex
plan
covered
“appropriate
constitutes
reimbursement.”
third
penses.
discuss the second and
We
guidance
therefore seek
from the
We
CMS
in turn below.
elements
U.S.A.,
Chevron,
Inc.
regulations. See
argues
it
not fail
Western
did
Council, Inc.,
837,
Nat. Res.
467 U.S.
Def.
to
re
L.Ed.2d 694
S.Ct.
(1)
because
lacked
imbursement
Western
(When
delegation
legislative
“the
to
knowledge that
constructive
particular
is im
agency
question
an
on
(2) attempted
payment;
made a
“may
explicit,”
rather than
plicit
payee
make Humana
on the settlement
own
of a stat
substitute
construction
[our]
pay
check but was ordered instead
reasopable interpre
utory provision
$19,155.41
pending
into trust
resolution
by
the administrator
tation
Huma
dispute regarding the amount of
agency.”).
not
na’s entitlement. As
district court
fails
beneficiary
party
If a
other
ed,
argument
second
forecloses
Western’s
days
re-
reimburse
within
Humana
attempt
to list
first. Western’s
ceiving
primary payment,
indi
payee
as a
on the
check
settlement
reimburse
even
“must
lien.
that Western knew of Humana’s
cates
already
it
the ben-
though
reimbursed
to evade this conclusion
Western seeks
eficiary
party*”
or other
C.F.R.
ignorance Humana’s status
asserting its
411.24(i)(l).
applies
regulation
This
no
dis
as an MAO. We see
value
422.108(f).
to an MAO.
equally
See
knowledge of
tinction.
had actual
Western
Thus,
Reale
claim,
payment to Ms.
Western’s
settling party
Humana’s
and as a
extinguish
ability
party
is insufficient to
litigation,
tort
Western had the
*11
Int’l, Inc.,
prospective
obligation
Therefore,
its
reimbursement
tions.
disputes
Western
also
PRYOR,
WILLIAM
Judge,
Circuit
amount,
damages
contesting both the
dissenting:
amount of Humana’s reimbursement enti
governed by
notoriously
Medicare is
appropriateness
tlement and the
of double
statute,
complex
but a
summary
brief
damages. Before Western settled with the
provisions
the four
appeal
relevant to this
Reales, Humana issued to Ms.
an
Reale
why
reveals
Humana failed to state a
$19,155.41.
Organization Determination for
1395y(b)(3)(A)
claim. Section
creates “a
administratively
Ms. Reale was entitled to
private cause of action ...
in
the case of
appeal that amount but did not. See 42
primary plan
which fails to
1395w-22(g).
U.S.C.
The amount
(or
primary payment
appropriate reim-
fixed,
may
Humana
recover is therefore
at
bursement)
para-
accordance with
least as to Ms. Reale.
See
C.F.R.
(1)
(2)(A).”
graphs
42 U.S.C.
if
422.576. Even Western retains the
added).
§ 1395y(b)(3)(A) (emphasis
Para-
amount,
right
dispute
argument
its
(2)(A)
prohibits “[p]ayment under
regarding Ms.
procurement
Reale’s
costs
...
subchapter
except
provided
lacks merit. A beneficiary’s procurement
(B).”
subparagraph
costs do not offset an
recovery
MAO’s
if
(B)
Subparagraph
empowers
Secretary
litigate
MAO must
repay
secure
of Health and Human Services to make
411.37(e),
§§
ment.
See
C.F.R.
payments conditioned on reimbursement
422.108(f). This is the third lawsuit
Funds,
says
the Medicare Trust
but it
which Humana
attempted
to recover
nothing about
Advantage Organ-
$19,155.41 secondary
its
payment. There
izations.
1395y(b)(2)(B).
See id.
fore,
Humana
recover the full amount.
Advantage Organizations
charge
instead
Finally,
agree
with the district
primary plans in accordance with section
court that double damages
required by
are
1395w-22(a)(4).Because Humana is not the
statute. Unlike the Government’s cause of
Secretary and its coffers are not the Trust
cause of action uses the
Funds,
it cannot seek
or reim-
mandatory language “shall” to describe the
“in
bursement
accordance
paragraphs
with
damages
Compare
amount.
(1)
(2)(A).”
reason,
For that
section
(“The
§ 1395y(b)(2)(B)(iii)
United States
”
1395y(b)(3)(A)
creates no
(em
may ...
damages....
collect double
action for a
Advantage Organiza-
added))
phasis
with
respectfully
tion. I
dissent.
1395y(b)(3)(A)
(Damages
“shall be
scope
amount
pro
1395y(b)(3)(A)
double the amount otherwise
of section
added));
(emphasis
(1)
vided.”
by
see also Baxter
paragraphs
limited
its references to
Fund for
(2)(A).
burse the
Trust
generally prohib-
large group
plans
un-
group
health
denying benefits on
from
plans
health
subchapter
respect
der this
to an
eligible
an individual is
ground
if it
item or service
is deihonstrated
*12
§ 1395y(b)(l).
Part A. See id.
plan
responsi-
has or
primary
such
had
(2)(A)
Secretary
forbids the
Paragraph
bility
payment
respect
to make
with
to
an insurance
making payments when
from
such item or service.
reasonably
can
be ex-
paid,
or
policy
§ 1395y(b)(2)(B)(i)-(ii). Subparagraph
Id.
exception:
with one
pected
pay,
to
(B)
Secretary a
gives
also
the
subchapter may
Payment under this
against
action to recover reimbursement
made,
subpara-
except
provided
as
be
primary plans,
1395y(b)(2)(B)(iii),
id.
and
(B),
respect to
item
with
subrogates
any right
the United
to
States
that—
to the extent
service
payment
primary plan,
to
under a
1395y(b)(2)(B)(iv).
(ii)
made or can rea-
has been
payment
...
expected to be made
sonably be
Advantage Organization
A
re-
liability
policy or
a ...
insurance
(1)
authority
ceives no
from paragraphs
plan)....
a self-insured
plan (including
(2)(A).
Paragraph
addresses the
subsection,
“primary
the term
In this
group
plan
large
case of a
health
or a
liability
a ...
insurance
plan” means
health
benefits be-
group
plan
denies
(including a self-insured
policy
eligible
for Medicare
cause an individual
(ii)
...
that clause
plan)
to the extent
(2)(A)
to
subpar-
Part A.
refers
applies.
(B),
exclu-
agraph
repeatedly
which
added).
1395y(b)(2)(A)(emphasis
The
Id.
Secretary
the
sively refers to the
provided
sub-
exception “except
one
—
Secretary may
Trust Funds:
make
“[t]he
payment by
(B)” applies to
paragraph —
by
payment,” “[a]ny
payment
such
the
on reimburse-
Secretary
the
conditioned
reim-
Secretary shall be conditioned on
ment of the Trust Funds:
appropriate Trust
bursement- -to the
(i) Authority
to make
conditional
Fund,”
entity
payment
“an
redeives
payment
shall reimburse the
primary plan[ ]
from a
un-
Secretary may
payment
The
make
any payment
appropriate Trust Fund for
respect to an
subchapter
der this
with
Secretary,”
reim-
by
“[i]f
made
de-
primary plan
item or service if a
not made to the
bursement is
(A)(ii) has not
subparagraph
scribed in
may charge
Fund ...
Trust
reasonably
expected
cannot
made or
A Medicare
1395y(b)(2)(B).
interest.”
to such
payment
respect
to make
with
not the Secre-
Advantage Organization is
(as determined
promptly
item or service
out of
tary,
payments
and it does not make
regulations). Any
in accordance with
result,
it cannot
Funds. As a
the Trust
Secretary shall be
payment
such
in accor-
payment
seek
reimbursement
ap-
to the
conditioned on reimbursement
(2)(A).
paragraph
dance with
Trust Fund in accordance with
propriate
succeeding provisions
of this subsec-
section 1395w-
separate provision,
A
22(a)(4),
Advantage Organ-
tion.
gives Medicare
(ii)
charge an insurer
required
power
Repayment
izations
“under circumstances
which
(9),
Subject
paragraph
secondary
subchapter is
under this
entity
pay-
that receives
plan, and
1395y(b)(2)”:
to section
plan,
pursuant
shall reim-
ment from
1395y(b)
Notwithstanding any
provision
tion
addresses
coordination
law,
organiza-
Advantage]
a [Medicare
Advantage
benefits with a Medicare
Or-
(in
provision
tion
the case of
Advantage
A
ganization.
Organi-
items and services to an individual under
paid
zation instead is
“in accordance with”
Advantage] plan
under cir-
[Medicare
1395w-22(a)(4).
section
in which
under this
cumstances
majority
that Huma-
also observes
subchapter
secondary pursuant
is made
title)
position “appears
comport
na’s
1395y(b)(2)
to section
of this
regulations,
that an
charge
provider
or authorize the
of such CMS
charge,
accordance with
services
rights
MAO ‘will exercise the same
to re-
law, plan,
allowed under a
charges
entity, or
primary plan,
cover from a
indi-
*13
in
policy
or
described
such section—
Secretary
vidual that the
exercises under
(A)
carrier, employer,
the insurance
in
B
regulations
subparts
law,
entity
plan,
which under such
through
part
D of
411 of this chapter,’”
pay for the
policy
provision
is to
Majority Op.
(quoting
at 1236
C.F.R.
such services....
422.108(f)),
majority
but the
fails to ex-
1395w-22(a)(4).
Section
1395w-
it
plain how does so. Humana sued under
22(a)(4)
1395y(b)(2),
mentions section
but
1395y(b)(8)(A),
section
which creates “a
“simply explains when
the cross-reference
Secretary
cause of action.” The
secondary
primary
is
to a
coverage
MAO
cannot avail herself of a
cause
is,
plan ...— that
under the same circum-
in
capacity.
her official
She instead
through
when insurance
traditional
stances
must sue under the official cause of action
secondary.” Parra v.
Medicare would be
1395y(b)(2)(B)(iii).
in section
But section
Ariz., Inc.,
715 F.3d
PacifiCare
Humana,
1395y(b)(2)(B)(iii)does not allow
2013).
subject
It does not
Cir.
The
private party,
regulation
to sue.
Advantage Organizations
to all
by
majority
interpret
cited
does not
Instead,
1395y(b)(2).
parts
of the
of section
1395y(b)(3)(A),
certainly
section
and it
can-
regulatory
it establishes a different
re-
not
text
that
rewrite
clear
section.
gime
require
that
does
—one
secondary
to be
Advantage Organizations
Finally,
majority
is incorrect
on reimburse-
payers, impose time limits
secondary payment
“an MAO must make a
ment, require
responsibility,
demonstrated
any
Secretary
time the
would do so.” Ma
pro-
establish an extensive administrative
jority
exceptions,
at
certain
Op.
1238.With
cess,
Secretary a
give the
cause
requires
section 1395w-22
Medicare Ad
subrogate the United States
vantage Organization
provide
the same
right
primary plan.
A
Secretary
benefits to enrollees
Advantage Organization charges
A
B.
would
under Parts
See
with section
plans
accordance
1395w-22(a)(l)(A);
1395w-
1395w-22(a)(4),
1395y(b)(2)(A).
not section
22(a)(2)(A).
Advantage
But a Medicare
Or
majority agrees
with the Third Cir-
ganization
free to
remains
Marketing,
cuit in In re Avandia
Sales
payer
section
And even if
1395w-22.
Liability Litigation,
Practices & Products
majority
were correct
section
(3d
2012),
statute plain meaning a claim. The of the
state ap- moots the other issues
statute I them.
peal, express no view on Be- Advantage Organization a Medicare treasury
is not the and its is not Funds, I respectfully
the Trust dissent. DUSEK, Peshkin,
Russell Marsha al., Plaintiffs-Appellants,
et CO., JPMorgan
JPMORGAN & CHASE *14 al., N.A.,
Chase Bank et Defendants-
Appellees.
No. 15-14463 Appeals,
United States Court
Eleventh Circuit.
Date Filed: 08/10/2016