United States Supreme Court Denies Cert. in Medicare Advantage Plan Case

The United States Supreme Court has declined review of a case that we have been following closely (and discussed in several newsletters). The decision at issue, In Re: Avandia Marketing, Sales Practices, and Products Liability Litigation, 685 F.3d 353; 2012 U.S. App. LEXIS 13230 (3rd Cir. June 28, 2012), was issued by the Third Circuit and stands for the proposition that Medicare Advantage (i.e., Medicare Part C) plans have a private cause of action under the Medicare Secondary Payer Act to seek repayment for conditional payments in federal court.  Several district courts in other jurisdictions, in contrast, have found that the Medicare Secondary Payer Act does not provide a private cause of action for Medicare Advantage ("MA") plans. As with all declinations by the Supreme Court, no explanation of the certiorari denial was provided, but apparently the conflict (as it currently stands) was not ripe enough for the Supreme Court's guidance on the issue.

Regardless, MA plans can continue to pursue repayment of conditional payments via the Medicare Secondary Payer Act, at least in the Third Circuit.  Given this reality, parties who find themselves mediating a case within the third circuit's jurisdiction may want to actively research and negotiate Part C conditional payment claims as they currently do Medicare's.  CMS itself seems to support this approach, as on December 11, 2011, CMS issued a memorandum supporting and further legitimating the collection efforts of MA plans (and Prescription Drug Plans).  This memo can be found at www.cms.gov/Medicare/Health-Plans/HealthPlansGenInfo/downloads/21_MedicareSecondaryPayment.pdf. Ignoring any conditional payment claim issues - whether from Medicare, a Medicare Advantage plan, or even a Prescription Drug Plan - could expose parties to collection efforts, post-settlement, that the Medicare Secondary Payer Act affords.  

 

We do not consider this issue resolved but only tabled for the moment.  As such, we will continue to monitor and provide updates as it develops further.