February 27, 2020 –
In MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 2020 U.S. App. Lexis 4554 (11 Cir.), the United States Court of Appeals for the Eleventh Circuit determined that the “presentment” statute is not a prerequisite to filing suit for recovery of conditional payments by a Medicare Advantage Plan “MAP.”
The Court’s analysis of the presentment statute appears out of context of the conditional payment collection process and does not incorporate the administrative appeal procedure that must be exhausted before a suit can be filed in Court.
The presentment statute states that when the United States makes a “request for repayment,” that request is only allowed to contain dates of services (treatment) within three years from the request. See 42 U.S.C. 1395y(b)(2)(B)(vi).
For example, if Medicare issues a demand on 1/1/2020, the statute arguably states the request for repayment should only contain dates of services from 1/1/2017-1/2020.
In the circumstances of this case, a MAP made payments associated with a 2012 motor vehicle accident. On 3/28/2013 the claimant settled a personal injury claim with Kingsway Insurance covering the accident for $6,667.00.
The MAP assigned its rights to recovery to a company called MSPA Claims. On 11/23/2015, MSPA claims demanded reimbursement for payment. The dates of services in the demand, predated 11/23/2012. A suit was filed by MSPA Claims 15 days afterwards on 12/7/2015.
The Court concluded that the presentment statute allows “Medicare to overcome any time limits prescribed by an employer’s group health plan that might otherwise prevent it from requesting reimbursement.” The Court describes the statute as stating what Medicare “can do.” According to the statute, Medicare can do the following:
The United States may seek to recover conditional payments…where the request for payment is submitted to the entity required or responsible under this subsection to pay … within the 3-year period beginning on the date on which the item or service was furnished.
It is unclear how the court reconciles this remaining language of 42 U.S.C. 1395y(b)(2)(B)(vi). A fair reading of the statute states that if you have a policy or plan that has a two-year limitation for filing a claim, this statute then supersedes that provision. However, Medicare is still limited to a three-year time frame.
The Court also fails to recognize the MSP Act does not have complete control over the requirements for the contents of a claim for reimbursement. Further, the Act does not have complete control when that claim for reimbursement is an enforceable final agency decision.
The U.S. Government is required to wait until the administrative appeal process is exhausted before it can refer to U.S. Treasury for collection (i.e. appeal due date has passed). This is because without a final agency decision, there is nothing for U.S. Treasury to enforce.
The Court fails to address the following:
- 42 C.F.R. 405.900, et. seq sets out the administrative appeal process that Medicare or claimant must exhaust before a suit can be filed in court.
- Medicare has provided guidance for Medicare Advantage Plans for appeals and grievances and can be found here.
- Medicare’s recovery based upon settlement is limited to the amount of settlement in accordance with Medicare rule. 42 C.F.R. 411.37. The MAP should also be subject to these limitations.
- What appeal process was afforded to Kingsway between demand and suit? (15 days)
- Did the MAPs demand comply with the requirements or guidance by Medicare?
Regardless of the outcomes of these cases, it is important to respond to a Medicare Advantage Plan’s request for reimbursement timely and to investigate the potential Medicare Advantage Plan as early as practical.
As these cases continue to develop, we will keep you updated.