We previously provided an update regarding Medicare Advantage Plans (MAPs) and their recovery rights under the MSP on April 24, 2013. Please click here to read our blog which delves into detail of the current state of conflict among the Circuit Courts regarding MAPs’ rights to reimbursement under the MSP.
It has come to light that Humana, Inc., which offers varied Part D and Medicare Advantage benefits, has recently filed lawsuits in four different jurisdictions seeking to exercise its priority right to recover conditional payments. The Defendants in the lawsuits are Farmers Insurance and Mid-Century Insurance Company.
With the Third Circuit in the In Re Avandia case finding that MAPs have the same rights to recovery as traditional Medicare does (which includes a right to double damages through a private cause of action for unreimbursed conditional payments) and the Ninth Circuit in the Parra case finding that MAPs have a contractual right of recovery but do not have the same rights to recovery as Medicare does, it will be interesting to see what each of the four jurisdictions where Humana has recently filed lawsuits have to say about this issue.
You may access the various complaints by clicking here: Western District of Missouri, Kansas, Eastern Tennessee, and the Eastern District of Texas. The resulting decisions out of these various jurisdictions will certainly be impactful upon the view of MAPs’ rights to recovery for conditional payments in jurisdictions across the country and just may later compel the U.S. Supreme Court to eventually hear the issue.
PMSI continues to recommend, in this time of uncertainty, that payers err on the side of caution and ensure that MAP conditional payment demands are addressed, so as to not risk a private cause of action for double damages.