CMS Determines TENS Treatment Ineffective for Chronic Low-back Pain (CLBP), June 15, 2012

On June 8, 2012, CMS published its final decision regarding the use of TENS for CLBP. It has been decided that TENS is not reasonable and necessary treatment for CLBP and is no longer a Medicare-allowable expense. 

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Stanton v. State Farm Mutual Insurance

Stanton v. State Farm Mutual Insurance
Automobile Insurance Company
No. 11-cv-282-JPG-DGW

2011 WL 3678912 (S.D.Ill.Aug. 22, 2011) 

This case involved an attempt by a defendant insurer (State Farm) to include Medicare’s recovery contractor (MSPRC) on the settlement check in relation to the resolution of a wrongful death claim to ensure that Medicare’s interests were properly protected for conditional payments issued by Medicare.

The plaintiff objected and sought a court order from the Illinois state court ruling that the MSPRC need not be included as a payee on the settlement draft.  State Farm filed an interpleader action against the Secretary of the Department of Health and Human Services bringing Medicare into the action. Continue reading “Stanton v. State Farm Mutual Insurance”

Phillips v. Kaiser Health Plan, Inc.,

Phillips v. Kaiser Health Plan, Inc., et. al.
No. C 11 – 02326 CRB
2011 WL 3047475 (N.D.Cal.July 25, 2011)

This case involved a putative class action filed against Kaiser Health Plan, Inc. (Kaiser), a Medicare Advantage (MA) Plan, and other related MA entities. 

The plaintiff alleged that (a) Kaiser was improperly and “illegally” demanding reimbursement of its accident related medical expenditures in an amount greater than that which would have been recoverable under traditional Medicare, and (b) that certain marketing and business practices employed by Kaiser violated California’s Unfair Competition Law and Consumer Legal Remedies Act.

The plaintiff filed this case in California state court, which Kaiser removed to the United States District Court for the Northern District of California (hereinafter referred to as the “court”).   This case then came before the court on (a) the plaintiff’s motion to remand and (b) Kaiser’s motion to dismiss.  Continue reading “Phillips v. Kaiser Health Plan, Inc.,”

Humana Medical Plan, Inc. v. Mary Reale & Parra v. Pacificare of Arizona, Inc.

Humana Medical Plan, Inc. v. Mary Reale
No. 10-21493-Civ., 2011 WL 335341
Jan. 31, 2011
(D. S.D. Fla, January 31, 2011)


Parra v. Pacificare of Arizona, Inc.
No. CV 10–008–TUC–DCB,
2011 WL 1119736
(D. Arizona, March 28, 2011)

The main issue presented in these cases involved whether Medicare Advantage Plans could assert their recovery actions in the federal court (i.e. whether or not the federal courts had proper jurisdiction over these claims)

For the reasons more outlined in the case decisions, the courts basically ruled that the federal courts did not have proper subject matter jurisdiction to hear these cases. In reaching this decision, the courts essentially found that while the MSP provides Medicare Advantage Plans with recovery rights, these plans do not enjoy the same rights as the federal government in terms of recovery claims in federal court. It is important to note that the courts did not rule that Medicare Advantage Plans do not have recovery rights. Rather, the courts in these cases ruled that the federal courts did not have jurisdiction over recovery actions involving Medicare Advantage Plans. Continue reading “Humana Medical Plan, Inc. v. Mary Reale & Parra v. Pacificare of Arizona, Inc.”

Benson v. Sebelius

Benson v. Sebelius
Civil Action No. 09-1931 (RMU),
2011 WL 1087254
(D. D.C. March 24, 2011)

This case involved a wrongful death and survival action. The parties settled the claim for $90,000, with 80% of that amount allocated for the wrongful death settlement award and 20% allocated for the survival claim. Medicare issued a final demand for conditional payment recovery in the amount of $25,868.58.

Benson challenged Medicare’s recovery claim arguing that under the Medicare Secondary Payer Statute (MSP) CMS can only recover from that aspect of the settlement related to the Medicare beneficiary’s estate and not from the wrongful death part of the settlement per the per the court’s decision in Bradley v. Sebelius, 621 F.3d 1330 (11th Cir., Sept. 29, 2010). In addition, Benson contended that one of the administrative bodies’ alleged failure to provide him with a requested transcript in a timely manner during the administrative appeals phase of the action violated his 5th Amendment due process rights.

The court rejected the plaintiff’s arguments and ruled in favor Medicare. In reaching its decision that court found the Benson case was factually and legally different from Bradley. For reasons more fully explained in the court’s ruling, the court, in part, found that Medicare could recover its full claimed amount in that in Benson (unlike in Bradley) the plaintiff claimed compensation for the decedent’s medical costs as part of his wrongful death claim. The court also found that there was no violation of 5th Amendment due process rights.