An interesting opinion was recently issued by the US District Court for the Southern District of Florida in the Claims v. Bayfront Hma Med. Ctr case.(2018 W.S.Dist.LEXIS 44913). The underlying facts of the claim involve a Medicare Advantage Plan enrollee, D. W., who was involved in a motor vehicle accident on February 1, 2014. The Medicare Advantage Plan was administered by Florida Healthcare Plus ( “FHCP). D.W received medical treatment from a facility operated by the Defendant, Bayfront. At the time the treatment was provided, D.W. was covered by a no-fault plan, First Acceptance Insurance Company, and by the FHCP administered Medicare Advantage Plan. Bayfront billed the no-fault plan for $6,255.96 in charges on April 14, 2014. Partial payment was made in the amount of $3,753.58. Bayfront then billed FCHP the same amount, $6,255.96. A separate partial payment of $691.64 was made by FCHP. MSPA Claims, as an assignee of FCHP, brought this claim on behalf of itself and a similarly situated class of Florida Medicare Part C plans against the provider, Bayfront. Recovery was being sought under the following theories: 1. MSP private cause of action 42 U.S.C. Section 1395 y(b)(3)(A), 2. Florida Deceptive and Unfair Trade Practices Act ( “FDUTPA”) and 3. an unjust enrichment claim. Defendant moved to dismiss the action arguing that the MSP claim was barred by the statute of limitations and cannot be brought against a provider. The Plaintiff’s standing to bring suit under the remaining two claims was also challenged.
The Court dismissed the claims brought under the Florida Deceptive and Unfair Trade Practices Act ( “FDUTPA”) and the unjust enrichment theory finding that the Plaintiff’s assignment from FCHP did not include these types of actions. The private cause of action claim, however, was allowed to stand. In reaching this conclusion, the Court found that the plain language of the private cause of action provision was ambiguous. It could be viewed as both allowing a private cause of action against a primary plan as well as a private cause of action against “any entity” who failed to provide “appropriate reimbursement” to the Government or the Medicare Advantage Plan. The Court also gave deference to CMS’ regulations that give Medicare Advantage Plans the same rights to recover from a primary plan, entity or individual that the Government exercises under the MSP regulations. The Court’s assessment of the multiple statutory provisions also supported their conclusion that the Plaintiff may bring a private cause of action for double damages against the provider Bayfront. The Plaintiff, however, will still be required to prove that the payment made to Bayfront was actually a conditional payment under the Medicare Secondary Payor Act. In considering the statute of limitations argument raised by the defense, the Court found that Section 1395y(b)(2)(B)(vi) language does not require that a suit be filed within three years of the date on which the item or service was furnished. This provision instead pertains to the amount of time the Government has to seek reimbursement.
This action represents a departure from the typical claims filed by MSPA Claims against primary insurers, such as automobile or commercial liability insurers, for reimbursement of conditional payments made to Medicare Part C enrollees by the Part C plans. As the volume and scope of litigation spreads, parties should be proactive in developing a protocol to address claims involving payments by Medicare Advantage Plans.