Author Archives: Settlement Solutions

As Promised, Conditional Payments Resolution via Web Portal to Start 1/1/16

Rafael Gonzalez, Esq.
Vice President, Strategic Solutions

Introduction

092815_1655_NewProcessf1.gifOn November 9, 2015, CMS published an update on the much anticipated Medicare Secondary Payer Recovery Portal (MSPRP) Conditional Payment process. The entire Medicare Secondary Payer (MSP) community has been waiting on this since September 20, 2013, when the Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) published CMS-6054-IFC, RIN 0938-AR90 as an interim final rule on obtaining final MSP conditional payment amounts via web portal.

The 9/20/13 interim final rule specified the process and timeline for expanding CMS’ web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act). The interim final rule specified a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS’ conditional payment amounts and claims detail information via the CMS web portal.

The interim final rule also indicated CMS’ intent to add functionality to the web portal so as to permit users to notify CMS that the specified case was approaching settlement; obtain time and date stamped final conditional payment summary forms and amounts before reaching settlement, and ensure that relatedness disputes and any other discrepancies were addressed within 11 business days of receipt of dispute documentation.

Although it has taken a while, having developed and recently announcing a multifactor authentication solution earlier in 2015 to securely permit authorized users other than the beneficiary to access CMS’ conditional payment amounts and claims detail information via the web portal, on November 9, 2015, CMS published an update on the Medicare Secondary Payer Recovery Portal modification for inclusion of Final Conditional Payment (CP) process functionality.

CMS’ November 9, 2015 Announcement

As expected, the announcement indicated that “pursuant to the SMART Act, the MSPRP will be modified to include Final CP process functionality by January 1, 2016. This new functionality will permit authorized MSPRP users to notify CMS that a recovery case is 120 days (or less) from an anticipated settlement and request that the recovery case be a part of the Final CP process.”

The 11/9/15 announcement indicated that “when the Final CP process is requested, any disputes submitted through the MSPRP will be resolved within 11 business days of receipt of the dispute.  Once all disputes have been resolved, and the case is within 3 days of settling, the beneficiary or their authorized representative will be able to request a Final Conditional Payment Amount on the MSPRP.”  Once calculated, this amount will remain the “Final Conditional Payment Amount as long as the case is settled within 3 calendar days of requesting the Final CP amount, and settlement information is submitted through the MSPRP within 30 calendar days of requesting the Final CP amount.”

CMS’ September 20, 2013 Interim Final Rule

The 9/20/13 interim final rule produced 42 CFR Section 411.39, specifically addressing automobile and liability insurance (including self-insurance), no-fault insurance, and workers’ compensation: final conditional payment amounts via web portal. The interim rule provided beneficiaries access to his or her MSP conditional payment information via the MSPRP, provided that “the beneficiary created an account to access his or her Medicare information through the CMS website, and the beneficiary provided initial notice of a pending liability insurance (including self-insurance), no-fault insurance, or workers’ compensation settlement, judgment, award, or other payment to the appropriate Medicare contractor at least 185 days before the anticipated date of settlement, judgment, award, or other payment.”

The interim final rule also provided a beneficiary’s attorney or other representative, or applicable plan’s access on or before December 31, 2015, and after January 1, 2016. On or before December 31, 2015, a beneficiary’s attorney or other representative or an applicable plan, would be able to view total MSP conditional payment amounts and masked claim-specific information, including dates of services, provider names, and diagnosis codes, so long as “the authorized attorney or other representative or authorized applicable plan had properly registered to access the web portal, and the attorney or other representative or applicable plan obtained proper authorization from the beneficiary and submitted it to the appropriate Medicare contractor in the form of either proof of representation or consent to release in order to access the beneficiary’s case specific information.” Once such authorization was obtained, “a beneficiary’s attorney or other representative or an applicable plan could dispute claims, upload settlement information, and receive a final CP demand through the MSPRP.”

The interim final rule also indicated that “on or after January 1, 2016, a beneficiary’s attorney or other representative or an applicable plan could access conditional payment information via the MSPRP using the multifactor authentication processes, dispute claims and upload settlement information via the web portal, and obtain a final conditional payment amount.”

The Medicare Secondary Payer Recovery Portal Resolution Process

As indicated by the 9/20/13 interim final rule, the MSPRP process is as follows:

  • A beneficiary’s attorney or other representative or an applicable plan must properly register to access the web portal, and obtain proper authorization from the beneficiary and submit it to the appropriate Medicare contractor in the form of either consent to release (in order to access the beneficiary’s case specific information) or proof or representation (in order to dispute claims, upload settlement information, and receive a final CP demand).
  • A beneficiary’s attorney or other representative or an applicable plan must provide initial notice of a pending liability insurance (including self-insurance), no-fault insurance, and workers’ compensation settlement, judgment, award, or other payment to the appropriate Medicare contractor at least 185 days before the anticipated date of settlement, judgment, award, or other payment.
  • The Medicare contractor compiles and posts claims for which Medicare has paid conditionally that are related to the pending settlement, judgment, award, or other payment within 65 days of receiving the initial notice of the pending settlement, judgment, award, or other payment.
  • Beginning any time after CMS posts its initial claims compilation, and up to 120 days before the anticipated date of a settlement, judgment, award, or other payment, the beneficiary, or his or her attorney, or other representative or applicable plan may notify CMS, once and only once, via the web portal, that a settlement, judgment, award or other payment is expected to occur within 120 days or less from the date of notification.
  • The beneficiary, or his or her attorney, or other representative or applicable plan may address discrepancies by disputing a claim, once and only once, if he or she believes that the claim included in the most up-to-date conditional payment summary form is unrelated to the pending liability insurance (including self-insurance), no-fault insurance, or workers’ compensation settlement, judgment, award, or other payment.
  • Disputes submitted through the web portal are to be resolved within 11 business days of receipt of the dispute and any required supporting documentation.
  • When any disputes have been fully resolved and the beneficiary, or his or her attorney, or other representative or applicable plan has executed and obtained confirmation of the completion of a final claims refresh, then the beneficiary, or his or her attorney or other representative, or applicable plan may download or otherwise request a time and date stamped conditional payment summary form through the web portal. If the download or request is within 3 days of the date of settlement, judgment, award or other payment, that conditional payment summary form will constitute Medicare’s final conditional payment amount.
  • Within 30 days of securing a settlement, judgment, award, or other payment, the beneficiary, or his or her attorney or other representative or applicable plan, must submit through the web portal settlement documentation which indicates the date of settlement, judgment, award, or other payment, including the total settlement amount, the attorney fee amount or percentage, as well as any additional costs borne by the beneficiary to obtain his or her settlement, judgment, award, or other payment.
  • If settlement information is not provided within 90 days of securing the settlement, the final conditional payment amount obtained through the web portal is void.
  • Once settlement, judgment, award, or other payment information is received, CMS applies a pro rata procurement reduction to the final conditional payment amount in accordance with 42 CFR Section 411.37 and issues a final MSP recovery demand letter.

Helios Settlement Solutions has been preparing for the implementation of the SMART Act since becoming law in January 2013. As a result, Helios’ Conditional Payment Resolution team is ready to assist current and potential clients with implementation of CMS’ 9/20/13 interim final rule by incorporating the MSPRP resolution process effective January 1, 2016. Should you have any questions pertaining to this new procedure, or if we can be of any assistance regarding this expedited web portal process, please do not hesitate to contact us at 888.672.7674, or at contactus@helioscomp.com.

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Arizona Federal Court Dismisses Case Asking Whether Liability MSA is Necessary

Rafael Gonzalez, Esq.
Vice President, Strategic Solutions

Stethoscope and GavelOn October 16, 2015, the United States District Court for the District of Arizona published its opinion on Aranki v. Burwell, concluding that this case is not ripe for review because no federal law mandates CMS to decide whether Plaintiff is required to create a MSA. That CMS has not responded to Plaintiff’s petitions on the issue, is not reason enough for this Court to step in and determine the propriety of its actions. The Court goes as far as to indicate that there may be a day when CMS requires the creation of MSAs in personal injury cases, but that day has not arrived. The Court indicates that even if a justiciable case or controversy existed, or the Court found other grounds to exercise jurisdiction, the United States in this case is immune from lawsuit as it has not waived its sovereign immunity. Therefore the Court concludes that although it is sympathetic to the uncertain predicament that CMS has placed upon Plaintiff, judgment in favor of the Defendants is proper.

In 2009, Plaintiff Rachel Aranki (Plaintiff), a Medicare beneficiary, was injured in a medical malpractice incident that left her partially paralyzed and in chronic pain. Plaintiff filed a medical malpractice action in Arizona state court against Scottsdale Healthcare Hospital, and several doctors who treated her (Defendants). A settlement agreement was reached in the case but finality of the settlement was stalled because the issue arose whether the Center for Medicare and Medicaid Services (CMS) would mandate the creation of a Medicare set aside (MSA). Plaintiff petitioned CMS, but it did not respond.

Without any indication from CMS, Defendants were fearful that going through with settlement without approval or recognition from CMS would not be in their best interest. As a result, Plaintiff filed a Motion to Enforce Settlement. After hearing from counsel from both plaintiff and defendants, the Superior Court of the State of Arizona in the County of Maricopa ordered the settlement of the parties enforced.

The order of the Superior Court indicated that Plaintiff’s counsel “shall maintain $153,558.28 in a separate interest-bearing account to be held in trust, so that monies for payment of medical expenses which are necessitated by the injuries claimed and covered by Medicare may be dispersed from the trust account.” In addition, “counsel for plaintiff will notify CMS of the settlement, including notification of the recommended MSA amount.”

In addition to these requirements, the Superior Court ordered the plaintiff to “file a Declaratory Judgment action in the United States District Court for the District of Arizona seeking a determination of the necessity of a Medicare set aside, and if a MSA is required, the amount required to be set aside.” The Superior Court indicated that the action should “name the United States of America as a defendant, together with such other parties or entities as may be necessary to adjudicate the issue of the necessity of and amount of a MSA.”

The Superior Court also indicated that “if the District Court declares that an MSA is not required, the funds held in trust will be released to the Plaintiff without restriction. If the District Court determines that an MSA is required, Plaintiff shall use the funds in trust account to establish a self-administered MSA in the amount determined by the District Court. If the District Court ultimately declines to rule on the necessity of an MSA, plaintiff will maintain the entirety of the funds held in trust account until some final determination is made by the Court or agreement of Plaintiff and US Government.”

As ordered, Plaintiff filed a Declaratory Judgment action in the appropriate District Court. However, before the court entertains a declaratory judgment, “the District Court must examine whether there is an actual case or controversy within its jurisdiction.” If there isn’t such a case or controversy, then “the case is not ripe for review and the court lacks subject matter jurisdiction.” Here, the District Court finds that “there is no justiciable case or controversy ripe for review. As such, the Court does not have subject matter jurisdiction to hear this case.”

The Court indicates that “this case is not ripe for review because no federal law mandates CMS to decide whether Plaintiff is required to create a MSA. That CMS has not responded to Plaintiff’s petitions on the issue, is not reason enough for this Court to step in and determine the propriety of its actions.” The Court goes as far as to indicate that “there may be a day when CMS requires the creation of MSAs in personal injury cases, but that day has not arrived.”

In addition, the Court indicates that “even if a justiciable case or controversy existed, or the Court found other grounds to exercise jurisdiction, the United States in this case is immune from lawsuit as it has not waived its sovereign immunity.” Therefore the Court concludes that although it is “sympathetic to the uncertain predicament that CMS has placed upon Plaintiff, judgment in favor of the Defendants is proper.”

This is not the first federal court to rule in this manner. On May 2, 2012, the United States District Court for the Southern District of Florida in Bruton v. Carnival Corporation, concluded that there is no legal requirement that the settlement in this personal injury lawsuit include a Medicare set-aside. On February 7, 2013, the United States District Court for the Southern District of Florida in Early v. Carnival Corporation, again found that because there is no legal requirement that the settlement in this personal injury lawsuit include a Medicare set-aside, it will not render an advisory opinion as to whether an MSA is necessary or not.

However, other federal courts have ruled differently on this same issue. On February 26, 2013, the United States District Court for the Southern District of Mississippi published in Welch v. American Home Assurance, finding that there is an actual controversy when the parties seek a declaration of their rights and obligations in order to comply with the MSP and its related regulations involving the settlement of liability claims, for which CMS provides no procedure for determining the adequacy of protecting Medicare’s interests for future medical needs and/or expenses. On April 17, 2013, the United States District Court for the Western District of Louisiana in Benoit v. Neustrom, not only opined on the necessity for an MSA in a liability case, but used a percentage applied formula to the net settlement proceeds to conclude a specific sum of money to be set aside in trust for future medical expenses.

As Helios Settlement Solutions has been indicating for a number of years, until there is legislation or regulations in place that spell out when and how to take Medicare’s future interests into consideration in liability claims, the only way to control this issue is to make it part of your settlement agreement or release. Be clear, be precise, and be specific as to the intent and format of the parties’ wishes and agreement on how to protect Medicare’s future interests. Perhaps no case has said it best than the February 11, 2015 opinion from the United States Court of Appeals for the Second Circuit in Hoover v. New York State Department of Corrections and Community Supervision, Albion Correctional Facility, Sue Wojcinski, Sandra Durfee, Angie Maume, and Donna Baker, finding that if the parties considered plaintiff’s Medicare status to be so critical in deciding whether to settle or not, they should have ascertained how to take Medicare’s future interests into consideration before agreeing to settle the case for $750,000.

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2nd Circuit Dismisses Pro Se’s PCA Claim for Lack of Allegation of Injury-in-Fact

By Rafael Gonzalez, Esq.
Vice President, Strategic Solutions

LawOn October 30, 2015, the United States Court of Appeals for the Second Circuit published its opinion on Plante v. Dake, McDermott, Stewart’s Shop Corp concluding that although the District Court below erred in ruling that it lacked federal-question jurisdiction over Plante’s MSP claims, since it is a federal statute which confers the Court with federal-question jurisdiction, the District Court nonetheless properly dismissed Plante’s complaint for lack of subject-matter jurisdiction because Plante lacked Article III standing to bring the MSP claims.

Plaintiff-appellant Joan Patricia Plante (Plante), proceeding pro se, appeals the United States District Court for the Northern District of New York’s judgment dismissing her complaint against Gary Dake, President of the Stewart’s Shops Corp., Joanne McDermott, Consumer Affairs Director of the Stewart’s Shops Corp., and the Stewart’s Shops Corp. (defendants), arising out of an alleged incident where Plante sustained injuries on Stewart’s Shops Corp. premises. The District Court dismissed Plante’s complaint for lack of subject-matter jurisdiction and entered judgment August 4, 2014. On appeal, Plante contends that the Court erred by dismissing her case for lack of subject-matter jurisdiction. She argues that one of her claims–under the Medicare Secondary Payer Act–confers federal-question jurisdiction on the Court.

Plante commenced an action against defendants on January 30, 2014, alleging that she sustained injuries as a result of defendants’ negligence after she slipped, tripped, and fell on the morning of January 31, 2011, at a Stewart’s Shop in Gansevoort, New York, on asphalt affected by a buildup of ice. Plante’s First Amended Complaint (“FAC”), filed February 26, 2014, asserted six causes of action sounding in state-law theories of common-law negligence and violations of New York’s Premises Liability Law. She also asserted a claim under the private cause of action provided in the Medicare Secondary Payer Act (MSP), 42 U.S.C. § 1395y(b)(3)(A), which, according to Plante, required defendants to reimburse Medicare for past and future medical bills resulting from the slip and fall.

Defendants moved to dismiss the FAC on March 3, 2014, under Rules 12(b)(1) and 12(b)(6), arguing that the District Court lacked subject-matter jurisdiction and that Plante failed to state a claim upon which relief could be granted. Plante filed an opposition on March 28, 2014, and the same day filed a second amended complaint without leave of court. After defendants objected to the second amended complaint in their reply brief, Plante sought leave of court on April 9, 2014, to file a third amended complaint.

On August 1, 2014, the District Court dismissed Plante’s FAC, ruling that it lacked subject-matter jurisdiction over the case. Specifically, the Court ruled that it lacked federal-question jurisdiction because Plante “had not fulfilled the condition precedent for bringing a MSP claim,” i.e., demonstrating that defendants were indeed responsible for payments to Medicare for Plante’s medical costs. The Court declined to exercise supplemental jurisdiction over Plante’s state-law claims, and denied Plante’s request for leave to amend, finding that amendment would be futile. This appeal followed.

The Circuit Court concludes that the District Court erred in dismissing Plante’s FAC for lack of federal-question jurisdiction because Plante asserts claims under the MSP, which is a federal statute. However, even if an MSP claim can confer federal-question jurisdiction, the Circuit Court finds that the District Court lacked subject-matter jurisdiction because Plante did not have Article III standing to bring the claim.

The Circuit Court indicates that “Article III standing consists of three ‘irreducible’ elements: (1) injury-in-fact, which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) causation in the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.” Thus, a plaintiff must have suffered an injury-in-fact in order to have standing under Article III of the Constitution.

In the present case, Plante lacks Article III standing to bring the MSP claim because the FAC does not allege that Plante suffered an injury-in-fact. The FAC alleges that Medicare alone has suffered an injury as a result of the defendants’ purported failure to pay Medicare for Plante’s medical bills resulting from the slip and fall. The injury to Plante, however, is predicated on tort liability alleged in the very same complaint. Plante’s injuries from the trip and fall cannot be traced back to defendants’ alleged nonpayment to Medicare, and therefore do not support standing to bring an MSP claim.

Given the allegations set forth in the FAC, the Circuit Court concludes in this case that Plante lacks standing to bring the MSP claims. Because Plante lacks Article III standing to bring the MSP claims, the Court does not consider any question regarding statutory standing to bring a private cause of action against a tortfeasor under the MSP.

Having considered Plante’s remaining arguments, the Court finds them to be without merit, and therefore affirms the August 4, 2014, judgment of the District Court.

As we have all seen from the various decisions rendered by the USDC for the Southern District of Florida throughout 2015, appropriately pleading a Medicare Secondary Payer private cause of action is not easy. As this decision by the USDC for the Northern District of New York and the USCA for the Second Circuit make clear, pleading such matters must include not only allegations that the primary payer is responsible for payment or reimbursement of the outstanding medical bills related to the claim by way of settlement, agreement, judgment, award, payment, or other means, but must also include a recitation of how the non-payment of such bills by the primary payer affects or injures the claiming party or parties. Although it would seem innate that non-payment of such medical bills by the primary or responsible payer would mean that the plaintiff claiming such payment or reimbursement would then have to make such payment or reimbursement out of his/her settlement proceeds or damages awarded, the Court here makes it clear that such injury-in-fact must be plead with specificity, clarity, and detail in order to survive a motion to dismiss. Count on Helios Settlement Solutions to keep you updated on the evolution of MSP compliance, and especially the ever changing landscape of private causes of action.

Florida Federal Court Again Allows Assignee to Bring MSP PCA, and Again Dismisses it Due to Lack of Facts Establishing Insurer’s Responsibility to Pay Medical Expenses

Rafael Gonzalez, Esq.
Vice President, Strategic Solutions

073115_1834_FloridaFede1.jpgOn October 6, 2015, the United States District Court for the Southern District of Florida published its opinion on MSP Recovery, LLC v. Allstate Insurance Company, finding that Plaintiff has again failed to adequately allege the minimal facts to support its claims. Thus, the Court concludes that Defendant’s motion to dismiss is granted with leave for Plaintiff to replead some of its counts. The Court warns Plaintiff that this will be its last chance to plead its case. If Plaintiff fails to adequately allege its claims in a Third Amended Complaint, the Court will dismiss with prejudice.

This is yet another one of those cases where Florida Healthcare Plus (FHCP), a health maintenance organization (HMO) and a participant provider in the Medicare Advantage Plan (MAP) program, provided Medicare Advantage coverage to Enrollee. As in the other similar 5 cases published by this same court in 2015, FHCP assigned all of its rights with respect to claims for the recovery of amounts owed to FHCP to La Ley Recovery. La Ley Recovery, in turn, assigned all the recovery and reimbursement rights it received from FHCP to MSP Recovery LLC (Plaintiff).

On June 19, 2014, Enrollee was a passenger in a car which was struck from behind. Enrollee suffered bodily injury, received medical care for such injuries and incurred medical bills. Florida FHCP, as Enrollee’s MAP, paid Enrollee’s medical expenses. Allstate (Defendant) was Enrollee’s PIP and no-fault automobile insurer and, therefore, should have been the primary payer for the medical expenses arising from the automobile accident. However, FHCP and Plaintiff were unaware Allstate was Enrollee’s PIP and no-fault auto insurer. After learning about Defendant, Plaintiff sent several notices demanding reimbursement for the medical services paid for by FHCP, totaling $2,869.00, which Defendant refused to pay.

As a result of such denial, Plaintiff filed a Complaint alleging among other claims, a private cause of action under the MSPA for double damages. Defendant subsequently filed a Motion to Dismiss Plaintiff’s Complaint, which the Court granted, giving Plaintiff leave to amend its claim under the MSPA. The Court specifically noted that, while a contractual obligation may be sufficient to demonstrate Defendant’s responsibility for payment of the medical bills, Plaintiff had failed to adequately allege Defendant’s contractual responsibility because Plaintiff had not alleged the medical bills for which it sought repayment were reasonable, necessary, and related to the automobile accident. Plaintiff therefore filed its Second Amended Complaint.

The Court indicates that when a complaint is challenged under Rule 12(b)(6), a court will presume that all well-pleaded allegations are true and view the pleadings in the light most favorable to the plaintiff. However, once a court “identifies pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” it must determine whether the well-pled facts “state a claim to relief that is plausible on its face.” A complaint can only survive a 12(b)(6) motion to dismiss if it contains factual allegations that are “enough to raise a right to relief above the speculative level, on the assumption that all the factual allegations in the complaint are true.” However, a well-pled complaint survives a motion to dismiss “even if it strikes a savvy judge that actual proof of these facts is improbable, and “that a recovery is very remote and unlikely.”

Defendant again moved to dismiss Plaintiff’s MSPA claim on several grounds. The first, that Plaintiff must first obtain a judgment or settlement agreement to demonstrate Defendant’s responsibility for payment, was previously raised by Defendant and rejected by this Court. Despite the recent decisions by Judges King and Scola, which Defendant brought to the Court’s attention in two Notices of Supplemental Authority, the Court sees no reason to revisit these arguments and its prior holding, which rejected this argument.

Defendant next argues that Plaintiff has failed to adequately plead its MSPA claim because it has not pled any facts to establish Defendant’s responsibility to pay. Defendant argues that Plaintiff does nothing more than make conclusory statements that the medical bills it paid were reasonable, necessary, and related to the auto accident. Defendant argues that Plaintiff has not pled any underlying facts, no allegations regarding what type of injuries Plaintiff suffered in the accident, what injuries were treated, what services the medical bills paid by FHCP were for, the amounts of the individual bills that were paid, or whether the amounts of the bills were reasonable. Defendant urges that while Plaintiff alleges that Enrollee’s medical providers determined that the injuries sustained by Enrollee were directly the result of the use of the motor vehicle, it is not clear that the medical services actually paid for by FHCP were for these same injuries. Therefore Defendant argues Plaintiff’s conclusory allegations, coupled with its allegation that Defendant paid some medical bills for Enrollee that resulted from the auto accident, are simply a formulaic recitation of the elements of its claim and are, thus, insufficient to meet the pleading standard. Thus, Defendant argues Plaintiff has not adequately “demonstrated” Defendant’s responsibility to pay the bills based on its contractual obligations.

The Court agrees and grants Defendant’s motion to dismiss the MSPA claim with leave to replead for Plaintiff to allege facts supporting its conclusion that the payments made to Enrollee’s medical providers were reasonable, necessary, and related to the auto accident.

Regarding Plaintiff’s breach of contract claim, the Court indicates that Plaintiff must also establish that the assignor was a third-party beneficiary of the contract that Plaintiff now seeks to enforce. While Plaintiff has alleged that Enrollee’s medical providers are intended third-party beneficiaries of the no-fault insurance contract, the Court finds Plaintiff has alleged no facts to support this conclusory allegation. Since Plaintiff has not provided the no-fault policy, quoted its language, or otherwise pled the content of the policy that would establish that the medical providers were intended third-party beneficiaries of the policy, the Court concludes Plaintiff has not adequately pled a breach of contract claim based on the assignment of rights from the medical providers to FHCP because Plaintiff has not adequately pled that the providers were third-party beneficiaries of Enrollee’s no-fault insurance contract with Defendant. Accordingly, the Court dismisses this claim with leave to replead.

Defendant also seeks to dismiss Plaintiff’s allegations regarding “bad faith” and Plaintiff’s request for relief that seeks a determination that Defendant acted in bad faith. Despite these allegations and the request for a finding that Defendant acted in bad faith, Plaintiff did not actually alleged a claim for bad faith. Defendant argues dismissal would be appropriate because the allegations are immaterial and impertinent given the absence of a bad faith claim. The Court agrees. The Court indicates that because Plaintiff has not pled a claim for bad faith and the allegations are irrelevant to the claims pled by Plaintiff, it dismisses the bad faith allegations with prejudice, as is Plaintiff’s request for relief asking for a declaration that Defendant acted in bad faith.

As we have been doing throughout 2015, Helios Settlement Solutions will continue to report on the evolution of this issue and the case law deciding whether MAP assignees have the authority to bring an MSP private cause of action for double damages when primary payers have denied payment or reimbursement of medical bills paid by the MAP and what evidence and facts are needed in order to show and plead such primary payers’ responsibility. Stay tuned!

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