On an almost daily basis we are seeing Medicare Advantage Organizations (MAO), better known as Medicare Part C plans, try to lay claim to non-medical portions of a plaintiff’s recovery. Our position is that it may not lay claim to any portion of a plaintiff’s recovery intended to compensate him for non-medical claims. Cases in the 3rd and 9th Circuits have recently been faced with questions regarding a MAO’s right to reimbursement under the Medicare Secondary Payer Act. See Parra v. PacifiCare of Ariz., Inc. 715 F.3d 1146 (9th Cir. 2013); In re Avandia Mktg., 685 F.3d 355 (3rd Cir. 2012). However, the extent to which a MAO is entitled to reimbursement from the beneficiary has never been addressed. 42 U.S.C. § 1395w-22(a)(4) provides: Notwithstanding any other provision of law, a [Medicare Advantage Plan] may (… under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y (b)(2) of this title) charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section— (A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or (B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services. (emphasis added) Compare the above language with the language in the Medicaid statutes analyzed in Ahlborn in which the U.S. Supreme Court unanimously held that Medicaid agencies’ claims for reimbursement are limited to that portion of the settlement attributable to past medical expenses. See Arkansas Dept. of Health & Human Services v. Ahlborn, 126 S. Ct. 1752 (2006). The Medicaid statute at 42 U.S.C. § 1396a(a)(25)(H) states that the States are assigned “the rights of [the recipient] to payment by any other party for such health care items or services.” (emphasis added) In closing, while the debate rages whether MAO’s have the same statutory rights of recovery as Medicare, if one of these plans sinks its teeth into the plaintiff’s settlement, the above strategy is one effective method to help mitigate its claim.

221, Mount Olimpus, Rheasilvia, Mars,
Solar System, Milky Way Galaxy
+1 (999) 999-99-99
Thank You. We will contact you as soon as possible.
Shapiro Settlement Solutions
Thank You. We will contact you as soon as possible.