Medicare Part C and D repayment obligations have caused quite a stir at AAJ’s mid-winter convention in Boca Raton this week. The reality that each trial attorney could be personally liable for double damages to a C/D plan has many AAJ members gravely concerned, and rightfully so. The law has certainly been moving in the direction of providing MAO Plans (Part C and Part D) with the same recovery rights as traditional Parts A and B. Remember, Part D is really no different than Part C. Part D plans are private insurance plans that have nearly the same rights of recovery as Medicare since that is how the law has developed.
The new Humana v. Paris Blank (filed 2/5/16) case mentioned during the AAJ conference is really nothing new, but still quite troubling. The Western Heritage case out of the 11th Circuit is all about the same issues. Here is some additional reading on the Western Heritage case: Double Damages for Medicare Advantage Plans? 11th Circuit to Decide.
From what we understand, the defense lobby is working on legislation to exclude Part D from recovering under the MSP. The plans actually hate having to collect it. They only do it because the statute requires it. It isn’t cost effective for the Part D program. In addition, we understand the AAJ is going to be working on legislation as well regarding these issues.
Nevertheless, in the meantime, you have to make sure that Part C liens are dealt with effectively. Those are separate and distinct from anything asserted under the MSP by Medicare. You can have a client who had A/B and got treatment for injuries then switched over to C. So you can have both a Medicare Conditional Payment issues and a Part C plan lien. Then Part D…
Also, when we said that Part C and D plans have nearly the same rights, we meant, they are “nearly” the same and “not the same”. MAOs are authorized under a different statute, and it is the cross-referencing with the MSP that is giving them nearly the same recovery rights as traditional Medicare. In short, the answer in terms of what the exact rights are that these plans have in terms of recovery is being weighed now by the 11th Circuit Court in Western Heritage. It is an evolving area of the law. You may want to review the following AMICUS brief from Western Heritage to get a good flavor of the issues.