In a decision out of the Eleventh Circuit, MSPA Claims v. Kingsway Amigo, 2020 U.S. App. LEXIS 4554 (February 13, 2020), Plaintiff MSPA Claims (aka MSP Recovery LLC) was able to persuade the Court that the Medicare Secondary Payer (MSP) 3-year claims filing provision located at 42 USC § 1395y(b)(2)(B)(vi) does not preclude a Medicare Advantage Organization (MAO) from filing an MSP double damages cause of action pursuant to 42 USC § 1395y(b)(3)(A). At the outset of the opinion, the Court noted: “This case might have begun with a car wreck, but as it presents itself to us it has essentially nothing to do with the underlying accident or the resulting injuries. Instead, it turns on a careful examination of the often-convoluted rules governing the federal Medicare program- and in particular the Medicare Secondary Payer Act, 42 USC §1395y.”
Clearly, by referring to the MSP as “convoluted”, the Court knew it was in for a tough decision as to whether MSPA Claims was precluded from bringing suit here. As we have mentioned in prior blogs, Plaintiff MSPA Claims/MSP Recovery acts as an assignor from MAOs to file lawsuits under the MSP double damages private cause of action against primary insurance plans. Here, MSPA Claims asserted that Kingsway did not reimburse the MAO conditional payments to the MAO and filed suit for double damages. In rendering its decision, the 11th Circuit Court noted that the plain reading of the MSP claims filing provision did not preclude MSPA Claims from filing suit. Essentially, the Court found that the dependent “notwithstanding” clause and the permissive term “may” in the actual text of the MSP claims filing provision means that MAOs are not required to bring suit as a prerequisite in the 3 year period. Essentially, the permissive language within the law does not erect a separate bar that private plaintiffs must overcome to sue under the MSP private cause of action.
We will continue to monitor whether Kingsway seeks redetermination on this issue, and all other MSP MAO case law that is continuing to arise around the country due to the MSP’s “convoluted” nature.