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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12439
____________________
MSP RECOVERY CLAIMS, SERIES LLC,
a Delaware entity,
Plaintiff-Appellant,
versus
UNITED AUTOMOBILE INSURANCE COMPANY,
a Florida profit corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20887-CMA
____________________
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2 Opinion of the Court 21-12439
____________________
No. 21-12428
____________________
MSPA CLAIMS 1, LLC,
Plaintiff-Appellant,
versus
COVINGTON SPECIALTY INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-21583-KMW
____________________
Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and MARCUS,
Circuit Judges.
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21-12439 Opinion of the Court 3
WILLIAM PRYOR, Chief Judge:
When a private insurer is liable for a Medicare beneficiary’s
medical expenses, Medicare or the Medicare Advantage Organiza-
tion has secondary responsibility for the payment. See 42 U.S.C.
§ 1395y(b)(2)(A). If Medicare or the Medicare Advantage Organiza-
tion pays these expenses up front, it must seek reimbursement
from the insurance company that has primary responsibility for the
payment. See id. § 1395y(b)(2)(B)(i); MSPA Claims 1, LLC v. Tenet
Fla., Inc.,
918 F.3d 1312, 1316–17 (11th Cir. 2019). In these consoli-
dated actions, assignees of two Medicare Advantage Organizations
seek reimbursements from insurance companies that they allege
qualify as primary payers of beneficiaries’ medical expenses. The
insurance companies argue, and the district courts agreed, that the
assignees’ claims are barred because both assignees failed to satisfy
a procedural requirement: a contractual claims-filing deadline in
one case and a statutory requirement of a pre-suit demand in the
other. The assignees contend that the procedural requirements are
preempted by the Medicare Secondary Payer Act. See generally 42
U.S.C. § 1395y(b). Because neither procedural requirement is
preempted, we affirm.
I. BACKGROUND
These consolidated appeals involve separate complaints
filed by assignees of Medicare Advantage Organizations against pri-
vate insurers. The first was filed against Covington Specialty Insur-
ance Company, and the second was filed against United Automo-
bile Insurance Company.
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4 Opinion of the Court 21-12439
MSPA Claims 1, LLC, is the assignee of Florida Healthcare
Plus, Inc., a Medicare Advantage Organization. It seeks to recover
from Covington for the medical expenses of Medicare beneficiaries
who were insured by Florida Healthcare Plus. MSPA pleaded an
exemplar claim to “[d]emonstrate[] [its] [r]ight to [r]ecover” from
Covington in a putative class action.
The exemplar claim involves a Medicare beneficiary identi-
fied as “P.M.” In February 2014, P.M. fell while descending stairs at
a property owned by 3550 Palm Beach Holdings, LLC, and injured
her ankle and foot. At that time, Palm Beach Holdings was insured
by Covington under general liability and no-fault policies. P.M. was
enrolled in a Medicare Advantage plan administered by Florida
Healthcare Plus. P.M.’s medical providers billed Florida Healthcare
Plus for her medical expenses, which the organization paid. Florida
Healthcare Plus’s alleged right, as a secondary payer, to reimburse-
ment by Covington, as the primary payer, was ultimately assigned
to MSPA.
MSPA first notified Covington of its asserted “rights with re-
spect to the P.M. claim” in July 2015. Although the policy covered
medical expenses, Covington argued that it was not liable because
the expenses were not “reported to Covington within one year of
the date of [the] accident,” as the policy required. In 2016, Coving-
ton settled directly with P.M., and P.M. released her potential
claims.
MSPA initially filed this action in the District of New Hamp-
shire and sought double damages under the Medicare Secondary
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21-12439 Opinion of the Court 5
Payer Act and compensatory damages for breach of contract. The
District of New Hampshire transferred this action to the Southern
District of Florida. MSPA also moved to certify a class of Medicare
Advantage Organizations and assignees of such organizations that
Covington, as a primary payer, had allegedly failed to reimburse.
The parties filed cross-motions for summary judgment.
The district court adopted the magistrate judge’s report and
recommendation and granted summary judgment in favor of Cov-
ington. It rejected MSPA’s arguments and did not address class cer-
tification.
Avmed, a Medicare Advantage Organization, assigned to
MSP Recovery Claims, Series LLC, its claims to reimbursement by
United Auto. MSP relied on a proprietary software to sift through
publicly available data and “identify unreimbursed conditional pay-
ments made by [Avmed] . . . for which [United Auto] [was] respon-
sible as the primary payer.” MSP filed a putative class action in the
Southern District of Florida and alleged that defendant United
Auto “ha[d] systematically and uniformly failed to honor its pri-
mary payer obligation under” the Medicare Secondary Payer Act
for “accident-related medical expenses” and had failed to reimburse
the class members.
MSP chose two exemplar Medicare beneficiaries to prove its
right to recover as Avmed’s assignee. The two beneficiaries, iden-
tified as “W.T.” and “W.M.,” were each injured in accidents by
holders of United Auto no-fault policies. MSP alleged that, in both
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6 Opinion of the Court 21-12439
instances, United Auto failed to report its primary-payer status to
the government and failed to pay the beneficiary’s expenses or re-
imburse Avmed. It sought double damages under the Act.
The district court granted summary judgment in favor of
United Auto. It found that MSP failed to send United Auto a pre-
suit demand letter, as required by Florida law. And it rejected
MSP’s argument that the Act preempts the Florida statute.
II. STANDARD OF REVIEW
“We review a district court’s decision on summary judg-
ment de novo . . . , drawing all inferences in the light most favora-
ble to the non-moving party . . . .” Smith v. Owens,
848 F.3d 975,
978 (11th Cir. 2017).
III. DISCUSSION
When multiple insurers are liable for a Medicare benefi-
ciary’s medical costs—for example, when the beneficiary is entitled
to recover from both Medicare and a tortfeasor’s liability insurer—
liability must be allocated between Medicare and the primary plan.
Humana Med. Plan, Inc. v. W. Heritage Ins. Co.,
832 F.3d 1229,
1233 (11th Cir. 2016). Under the Medicare Secondary Payer Act,
private insurers are “primary” payers and Medicare is the “second-
ary” payer.
Id. at 1234; see 42 U.S.C. § 1395y(b)(2)(A). If the benefi-
ciary has elected to receive his or her Medicare benefits through a
private Medicare Advantage Organization, that organization also
qualifies as a secondary payer. Tenet,
918 F.3d at 1316–17.
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21-12439 Opinion of the Court 7
When a “primary plan does not promptly meet its obliga-
tions,” Medicare or the Medicare Advantage Organization can con-
ditionally “pay the entire amount upfront, so long as the primary
plan eventually reimburses Medicare.”
Id. at 1316 (citation and in-
ternal quotation marks omitted); see 42 U.S.C. § 1395y(b)(2)(B)(i).
And if the primary plan fails to reimburse, the secondary payer may
sue. The Medicare Secondary Payer Act creates a cause of action
for the government, 42 U.S.C. § 1395y(b)(2)(B)(iii), and it also cre-
ates a private cause of action under which beneficiaries can receive
double damages, id. § 1395y(b)(3)(A); see Tenet,
918 F.3d at 1316.
Medicare Advantage Organizations also “must rely on the private
cause of action when they sue.” Tenet,
918 F.3d at 1317.
We divide our discussion into two parts. First, in the Cov-
ington appeal, we reject the argument that the Medicare Secondary
Payer Act preempts the claims-filing deadline in the Covington in-
surance policy. Second, in the United Auto appeal, we explain that
the Act does not preempt Florida’s statutory requirement of a pre-
suit demand.
A. The Medicare Secondary Payer Act Does Not Preempt the
Claims-Filing Deadline in the Covington Insurance Policy.
MSPA argues that Covington’s insurance policy establishes
its primary-payer status. See MSP Recovery, LLC v. Allstate Ins.
Co.,
835 F.3d 1351, 1359 (11th Cir. 2016) (explaining that “respon-
sibility for payment may be demonstrated” by “contractual obliga-
tion” (citation omitted)). But an alleged primary payer may “assert
any valid contract defense in arguing against [its] liability.”
Id. at
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8 Opinion of the Court 21-12439
1361. Covington maintains that the one-year claims-filing deadline
in its policies constitutes a valid defense.
MSPA contends that the policy deadline is preempted by the
Medicare Secondary Payer Act, which provides a three-year claims-
filing period:
Notwithstanding any other time limits that may exist
for filing a claim under an employer group health
plan, the United States may seek to recover condi-
tional payments . . . where the request for payment is
submitted to the entity required or responsible . . .
under a primary plan within the 3-year period begin-
ning on the date on which the item or service was fur-
nished.
42 U.S.C. § 1395y(b)(2)(B)(vi) (emphasis added). In the district
court, MSPA did not contend that this provision preempted the
deadline in the Covington policy. Instead, it argued that “there is
no time-limit for an MAO seeking reimbursement from a primary
plan, as the claims-filing provision in 1395y(b)(2)(B)(vi) does not ap-
ply under the private cause of action.”
The district court correctly determined that the claims-filing
provision in section 1395y(b)(2)(B)(vi) is “irrelevant.” “The starting
point for all statutory interpretation is the language of the statute
itself.” United States v. DBB, Inc.,
180 F.3d 1277, 1281 (11th Cir.
1999). The claims-filing provision states that “the United States
may seek to recover conditional payments” “[n]otwithstanding any
other time limits.” 42 U.S.C. § 1395y(b)(2)(B)(vi) (emphasis added).
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21-12439 Opinion of the Court 9
The text unambiguously refers only to actions by the United States.
Cf. Tenet,
918 F.3d at 1317 (indicating that the specific references
to the “United States” limit the government’s cause of action, 42
U.S.C. § 1395y(b)(2)(B)(iii), to use by the United States). And even
if the provision could benefit a Medicare Advantage Organization,
the preemption clause applies only to claims-filing deadlines in em-
ployer group health plans. 42 U.S.C. § 1395y(b)(2)(B)(vi) (“Not-
withstanding any other time limits that may exist for filing a claim
under an employer group health plan, the United States may seek
to recover conditional payments . . . .”). There is no basis for us to
infer that the provision preempts a claims-filing deadline in a no-
fault or general liability policy.
MSPA also argues that even if Covington does not qualify as
a primary payer through its contractual obligation, Covington is a
primary payer due to “its settlement of [an] exemplar claim.” See
Allstate,
835 F.3d at 1359 (explaining that “responsibility for pay-
ment may be demonstrated” by a settlement). Covington settled
directly with the Medicare beneficiary in the exemplar case. But as
the district court ruled, MSPA forfeited this claim by failing to al-
lege it in its complaint.
“A complaint need not specify in detail the precise theory
giving rise to recovery. All that is required is that the defendant be
on notice as to the claim being asserted against him and the
grounds on which it rests.” Sams v. United Food & Com. Workers
Int’l Union,
866 F.2d 1380, 1384 (11th Cir. 1989). But “[d]espite the
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10 Opinion of the Court 21-12439
‘liberal pleading standard for civil complaints,’ plaintiffs may not
‘raise new claims at the summary judgment stage.’” White v. Bel-
tram Edge Tool Supply, Inc.,
789 F.3d 1188, 1200 (11th Cir. 2015)
(quoting Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1314
(11th Cir. 2004)). Instead, “the proper procedure for plaintiffs to as-
sert a new claim is to amend the complaint.” Gilmour,
382 F.3d at
1315.
MSPA argues that “the complaint’s theory of liability was
pled broadly enough to encompass the additional evidence of the
settlement agreement.” According to MSPA, “[w]hile the settle-
ment agreement may indeed provide an alternative way for MSPA
Claims to meet the elements to sustain a private cause of action,
that does not make it an altogether new theory that may be ignored
at summary judgment.” It contends that “settlement is a form of
contractual obligation, [and] that the complaint’s references to con-
tractual obligations could encompass a settlement once MSPA
Claims learned of it.”
MSPA’s complaint did not give Covington notice of its claim
that Covington’s primary-payer status could be established based
on its settlement with P.M. The amended complaint did not even
mention the word “settlement” in a relevant context. It alleged
only that “[Covington]’s no-fault and liability policies are primary
plans, which rendered [Covington] a primary payer for accident-
related medical expenses.” A complaint that only “offers ‘labels and
conclusions[,]’ . . . ‘a formulaic recitation of the elements of a cause
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21-12439 Opinion of the Court 11
of action[,]’ . . . [or] ‘naked assertions’ devoid of ‘further factual en-
hancement’” does not suffice to state a legal claim. Ashcroft v. Iq-
bal,
556 U.S. 662, 678 (2009) (alteration adopted) (quoting Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 555, 557 (2007)).
MSPA had the information it needed to plead the claim it
now asserts. Covington alerted MSPA to the settlement agreement
in March 2020 in its amended answers to MSPA’s second set of in-
terrogatories. MSPA filed its motion for summary judgment in
March 2021. Even so, MSPA did not amend its complaint in the
interim. MSPA responds that “Covington knew full well . . . that
MSPA Claims had become aware” of the settlement. But that fact,
even if true, would not relieve MSPA of its obligation to follow the
pleading requirements and allege in its complaint that the settle-
ment agreement served as a basis for liability.
B. The Medicare Secondary Payer Act Does Not Preempt Flor-
ida’s Pre-Suit Demand Requirements.
In United Auto, the district court granted summary judg-
ment in favor of United Auto after finding that MSP was required
under Florida law to send United Auto “a pre-suit demand letter
. . . but admits it did not.” The relevant Florida statute, the Florida
Motor Vehicle No-Fault Law, requires that a prospective plaintiff
send notice of intent to litigate to an insurer:
As a condition precedent to filing any action for ben-
efits under this section, written notice of an intent to
initiate litigation must be provided to the insurer.
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Such notice may not be sent until the claim is over-
due, including any additional time the insurer has to
pay the claim . . . .
FLA. STAT. § 627.736(10)(a). The statute also guarantees the insurer
a 30-day cure period before it can be sued. Id. § 627.736(10)(d). In
Florida, all automobile-liability policies are “deemed to incorporate
the provisions of the Florida Motor Vehicle No-Fault Law.” Id.
§ 627.7407(2).
MSP makes two arguments on appeal. First, it contends that
our precedents compel the conclusion that the Medicare Secondary
Payer Act preempts section 627.736(10)(a) of the Florida Statutes.
Second, it argues that even if our precedents do not compel that
conclusion, we should reach it now as a matter of first impression.
Both arguments fail.
MSP first cites MSP Recovery Claims, Series LLC v. ACE
American Insurance Co.,
974 F.3d 1305 (11th Cir. 2020), for the
proposition that the Act preempts Florida’s pre-suit demand re-
quirement. In that decision, we rejected the primary payers’ argu-
ment that “Plaintiffs failed to comply with the[] supposed pre-suit
notice requirements.”
Id. at 1318. The panel stated that “Defend-
ants point to no law that obligated Plaintiffs to submit ‘recovery
demand letters’ or otherwise provide advance notice of their intent
to bring a claim.”
Id. at 1319 (emphasis added). The ACE Court did
not mention section 627.736(10)(a) or preemption. Instead, it ex-
plained that the federal regulation that the defendants cited “con-
template[d] that primary payers’ liability arises not only after the
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21-12439 Opinion of the Court 13
primary payer receives a recovery demand letter but also in cases
in which” the primary payer’s responsibility is demonstrated in an-
other fashion.
Id. (first emphasis added) (citing
42 C.F.R. § 411.22).
ACE does not control. MSP admits that the inference “that
a state law pre-suit demand requirement . . . is impliedly
preempted by federal law” represents a rationale that “the [ACE]
Court did not express.” And MSP fails to explain how that rationale
was necessary to our holding.
MSP also argues that Humana supports its position.
832 F.3d
1229. There, we determined that the defendant primary payer,
Western Heritage Insurance, had constructive knowledge that the
plaintiff Medicare Advantage Organization had made a payment,
so Western Heritage was required to reimburse the organization.
Id. at 1239–40. According to MSP, because constructive knowledge
is sufficient to obligate a primary payer to reimburse a Medicare
Advantage Organization, “[i]mposing a[n] [additional] state-law
formal demand requirement would conflict with this low federal
statutory threshold to the federal right of action.”
We disagree. Our decision in Humana did not foreclose the
possibility that state-law procedural requirements could be super-
imposed. And the pre-suit demand requirement of section
627.736(10)(a) was not at issue. So that decision does not control
this appeal.
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14 Opinion of the Court 21-12439
MSP also argues that our decision in MSPA Claims 1, LLC
v. Kingsway Amigo Insurance Co.,
950 F.3d 764 (11th Cir. 2020),
supports its position. There, we stated that we had “recognized (as
relevant [t]here) only two limits on the [Medicare Secondary Payer
Act’s] private cause of action”: first, a Medicare Advantage Organ-
ization must “demonstrate[]” “the would-be primary payer’s re-
sponsibility” before suing for reimbursement; and second, “plain-
tiffs . . . may only sue primary plans when they fail to pay, and not
other entities such as medical providers.” Id. at 771 (citations and
internal quotation marks omitted). According to MSP, because
constructive knowledge can satisfy the first criterion, “[i]t would be
inconsistent to require actual knowledge through a pre-suit de-
mand requirement.”
MSP reads too much into Kingsway, where we carefully cab-
ined the statement at issue: the two limitations identified were the
only ones “relevant [t]here.” Kingsway, 950 F.3d at 771. It does not
necessarily follow that additional state procedural requirements,
such as a demand requirement, are preempted. And again, whether
the Medicare Secondary Payer Act preempts section 627.736(10)(a)
was not at issue.
MSP suggests that even if our precedents do not compel the
conclusion, we should hold as a matter of first impression that the
Medicare Secondary Payer Act preempts section 627.736(10)(a).
But the doctrine of preemption is derived from the Supremacy
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21-12439 Opinion of the Court 15
Clause. See U.S. CONST. art. VI, cl. 2. And that doctrine does not
apply here.
“[W]e generally recognize three classes of preemption.”
United States v. Alabama,
691 F.3d 1269, 1281 (11th Cir. 2012).
Field preemption exists “when a congressional legislative scheme
is so pervasive” that we can reasonably infer “that Congress left no
room for the states to supplement it.”
Id. (citation and internal quo-
tation marks omitted). “[E]xpress preemption . . . arises when the
text of a federal statute explicitly manifests Congress’s intent to dis-
place state law.”
Id. And conflict preemption may occur “when it
is physically impossible to comply with both the federal and the
state laws” or “when the state law stands as an obstacle to the ob-
jective of the federal law.”
Id. (citations omitted). MSP admits that
field preemption does not apply.
“[W]e follow two considerations when determining
whether a federal statute preempts state law.” Club Madonna Inc.
v. City of Miami Beach,
42 F.4th 1231, 1253 (11th Cir. 2022). “First,
we look at Congress’s purpose in enacting the federal law.”
Id. And
“[s]econd, we are guided by the assumption that the historic police
powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.”
Id.
(citation and internal quotation marks omitted).
The Medicare Secondary Payer Act does not expressly
preempt section 627.736(10)(a). We have no reason to conclude
from the text of the Act that Congress’s purpose in shifting
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16 Opinion of the Court 21-12439
primary-payer responsibility to private insurers to “curb the rising
costs of Medicare,” Humana,
832 F.3d at 1234, included preempt-
ing state procedural laws governing insurance liability. And there
is no evidence that Congress sought to broadly preempt the insur-
ance regulatory regimes traditionally administered by states. See,
e.g., Caldera v. Ins. Co. of the State of Pa.,
716 F.3d 861, 865 (5th
Cir. 2013) (“[A]n MSP claimant may not recover amounts from a
purported ‘primary plan’ in excess of a carrier’s responsibility un-
der state law or the relevant contract.”); Cal. Ins. Guarantee Ass’n
v. Azar,
940 F.3d 1061, 1064 (9th Cir. 2019) (“Nothing in the Medi-
care statute or its implementing regulations suggests that Congress
meant to interfere with state schemes designed to protect against
insurer insolvencies.”), abrogation on other grounds recognized by
R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles,
29 F.4th 542,
553 n.6 (9th Cir. 2022); Ocean Harbor Cas. Ins. v. MSPA Claims, 1,
261 So. 3d 637, 645 (Fla. Dist. Ct. App. 2018) (“The Secondary Payer
Act was never intended to broadly preempt State insurance law.”).
The Act also does not give rise to conflict preemption. MSP
does not assert that it is “physically impossible” to comply with
both the Medicare Secondary Payer Act and the pre-suit demand
requirement of Florida law. And the pre-suit demand requirement
does not create an unconstitutional obstacle to a Medicare Ad-
vantage Organization’s reimbursement.
“We use our judgment to determine what constitutes an un-
constitutional obstacle to federal law, and this judgment is
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21-12439 Opinion of the Court 17
informed by examining the federal statute as a whole and identify-
ing its purpose and intended effects.” Club Madonna, 42 F.4th at
1253 (citation and internal quotation marks omitted). The Supreme
Court has explained that a state law poses an unconstitutional ob-
stacle when “the purpose of the [federal] act cannot otherwise be
accomplished,” “its operation within its chosen field . . . [is] frus-
trated,” or “its provisions [are] refused their natural effect.” Crosby
v. Nat’l Foreign Trade Council,
530 U.S. 363, 373 (2000) (citation
omitted).
Florida’s pre-suit demand requirement does not meet this
relatively high bar. The statutory notice requirement and corre-
sponding 30-day cure period are procedural requirements that may
result in a brief delay. But the Florida law does not prevent or
meaningfully impede the reimbursement of Medicare Advantage
Organizations that Congress sought to facilitate. See Humana,
832
F.3d at 1234 (explaining that the purpose of the Medicare Second-
ary Payer Act was to shift primary-payer responsibility to private
insurers to “curb the rising costs of Medicare”). So, the provision
does not create an unconstitutional obstacle to the purposes or op-
eration of the Medicare Secondary Payer Act.
IV. CONCLUSION
We AFFIRM the judgments in favor of Covington and United
Auto.
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21-12439 Rosenbaum, J., Dissenting in Part 1
ROSENBAUM, Circuit Judge, Concurring in Part and Dissenting in
Part:
I join all but the last paragraph of the Majority Opinion. In
my view, the Majority Opinion correctly affirms the judgment for
Covington but errs in finding that Florida Statutes § 627.736(10)(a)
isn’t preempted by the Medicare Secondary Payer Act (the “Act”).
Rather, the Florida statute is preempted by the Act because the
Florida statute frustrates the Act’s purpose—reducing Medicare’s
costs—by shifting the burden of seeking reimbursement from
where Congress placed it (on the private insurer) back to Medicare.
I would vacate the entry of judgment for United Auto on
this ground and remand for further proceedings. 1
I.
Before 1980, if Medicare and a private insurer both covered
the same medical expenses, then Medicare would cover the entire
amount (within its scope). Humana Med. Plan, Inc. v. W. Heritage
Ins. Co.,
832 F.3d 1229, 1234 (11th Cir. 2016). Given this state of
affairs, private insurers understandably didn’t make much of an ef-
fort to cover their insureds’ costs; it was cheaper to let Medicare
pick up the tab. Bio-Med. Applications v. C. States Se. and Sw. Ar-
eas Health and Welfare Fund,
656 F.3d 277, 278 (6th Cir. 2011)
(“Before the [MSP] Act, Medicare paid for all medical treatment
1 United Auto moved for summary judgment on several grounds and the dis-
trict court decided only one.
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2 Rosenbaum, J., Dissenting in Part 21-12439
within its scope and left private insurers merely to pick up what-
ever expenses remained.”). The result? Medicare’s costs rose. Hu-
mana,
832 F.3d at 1234.
In response, Congress passed the Medicare Secondary Payer
Act, flipping the burden to private insurers to find and cover med-
ical expenses.
Id. Under the new system, where two plans covered
the same costs, the private insurer had to pay first—always—and
Medicare would step in “as a last resort.”
Id. In the statute’s par-
lance, the private insurers are “primary payers” and Medicare is a
“secondary payer.” 2
Sometimes, primary payers don’t pay promptly—like when
the tortfeasor is contesting liability. MSPA Claims 1, LLC v. Tenet
Fla. Inc.,
918 F.3d 1312, 1316 (11th Cir. 2019). When that happens,
the injured person still has medical bills to pay, so Medicare pays in
the first instance and the primary payer (in theory) reimburses
Medicare.
Id.
But there is a problem with this set-up: Medicare doesn’t
always know whether there is a primary payer. “[I]nsured
2 In the 1990s, Congress added a provision that would allow private entities—
Medicare Advantage Organizations—to administer Medicare benefits.
Id. at
1317. Like Medicare, Medicare Advantage Organizations are secondary pay-
ers.
Id. Because Medicare Advantage Organizations “stand in the shoes of
Medicare”—at least in these circumstances—I refer to them both as “Medi-
care.” MSPA Claims 1, LLC v. Tenet Fla. Inc.,
918 F.3d 1312, 1317 (11th Cir.
2019).
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21-12439 Rosenbaum, J., Dissenting in Part 3
individuals (and other private entities) are often in a better position
than the government to know about the existence of responsible
plans.” Tenet,
918 F.3d at 1316. So once a private insurer knows
that it is a primary payer, the private insurer must (1) tell Medicare
and (2) reimburse Medicare. See
42 C.F.R. §§ 411.22(a); 411.25(a). 3
The Act provides private insurers a strong incentive to com-
ply with these obligations. If a private insurer finds out that Medi-
care covered an expense for a plan participant and the private in-
surer reimburses Medicare, the private insurer must reimburse
only the amount Medicare paid. See 42 U.S.C. § 1395y(b)(2)(B)(iii);
42 C.F.R 411.24(c)(1). But if the private insurer doesn’t fulfill its
obligation and if Medicare must sue, then the private insurer pays
twice the amount Medicare paid. 42 U.S.C. §§ 1395y(b)(2)(B)(iii);
1395y(b)(3)(A);
42 C.F.R. § 411.24(c)(2). This double-recovery pro-
vision gives “the reimbursement requirement some teeth.” Tenet,
918 F.3d at 1316. Thus, in the ordinary course, private insurers
must affirmatively seek out secondary payments to their insureds
and reimburse Medicare. If they wait for Medicare to come to
them, they risk getting hit with double damages. That is the bal-
ance Congress struck—with private insurers as the actors and Med-
icare as the passive recipients.
3 To further bolster the scheme, private insurers also have reporting require-
ments through which they must tell Medicare about their plan participants
and claimants. See 42 U.S.C. § 1395y(b)(7)–(8); Ill. Ins. Guar. Fund v. Becerra,
33 F.4th 916, 918 (7th Cir. 2022).
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4 Rosenbaum, J., Dissenting in Part 21-12439
Florida’s pre-suit demand requirement upsets this balance.
Under Florida Statutes § 627.736(10)(a), an insurance company in
Florida cannot be sued until after a demand letter is sent—plus a
30-day cure period. In other words, if Medicare finds that a private
insurer in Florida is a primary plan, before Medicare can sue, it
must first send a demand to the private insurer and give the private
insurer 30 days to pay.
Florida’s law thus flips the burden on which party must seek
out the other from where Congress placed it (on the private in-
surer) to the secondary payer. Therefore, Florida’s pre-suit de-
mand requirement “frustrates” Congress’s purpose of having pri-
vate insurers act by removing their incentive to do so.
II.
As the Majority Opinion correctly recounts, a state law is
preempted when the state law “stands as an obstacle to the accom-
plishment and execution of the full purposes and objectives of Con-
gress.” Hillman v. Maretta,
569 U.S. 483, 490 (2013) (citation omit-
ted). There is a “presumption against pre-emption” where the state
law governs traditional state interests, so the state law must do
“major damage” to “clear and substantial” federal interests “before
the Supremacy Clause will demand that state law will be overrid-
den.”
Id. at 490–91 (citation omitted). But state law is not “entirely
insulated” from conflict pre-emption principles.”
Id. at 491 (citing
Ridgway v. Ridgway,
456 U.S. 46, 55 (1981)). Whether a state law
stands as a “sufficient obstacle is a matter of judgment, to be in-
formed by examining the federal statute as a whole and identifying
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21-12439 Rosenbaum, J., Dissenting in Part 5
its purpose and intended effects.” Crosby v. Nat’l Foreign Trade
Council,
530 U.S. 363, 373 (2000).
“To determine whether a state law conflicts with Congress’
purposes and objectives, we must first ascertain the nature of the
federal interest.” Hillman,
569 U.S. at 491. Then, “if [the federal
law’s] operation within its chosen field else must be frustrated and
its provisions be refused their natural effect—the state law must
yield to the regulation of Congress within the sphere of its dele-
gated power.” Smith v. Psych. Sols., Inc.,
750 F.3d 1253, 1258 (11th
Cir. 2014) (citing Crosby,
530 U.S. at 373).
Here, Congress’s purpose and objective is easy to discern:
saving money. “The transformation of Medicare from the primary
payer to the secondary payer with a right of reimbursement reflects
the overarching statutory purpose of reducing Medicare costs.”
Zinman v. Shalala,
67 F.3d 841, 845 (9th Cir. 1995) (citing H.R. Rep.
No. 1167, 96th Cong., 2d Sess. 352 (1980), reprinted in 1980
U.S.C.C.A.N. 5526, 5717)). As the House Report put it,
Medicare has served to relieve private insurers of ob-
ligations to pay the costs of medical care in cases
where there would otherwise be liability under the
private insurance contract. The original concerns
that prompted inclusion of this program policy in the
law—the administrative difficulties involving in as-
certaining private insurance liability and the at-
tendant delays in payment—no longer justify retain-
ing the policy, particularly if it is understood that
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6 Rosenbaum, J., Dissenting in Part 21-12439
immediate payment may be made by Medicare with
recovery attempts undertaken only subsequently
when liability is established.
No. 1167, 96th Cong., 2d Sess. 352 (1980), reprinted in 1980
U.S.C.C.A.N. 5526, 5752) (capitalization removed). And Congress
added the double-damages provision to “facilitate recovery of con-
ditional payments.” Stalley v. Methodist Healthcare,
517 F.3d 911,
915–16 (6th Cir. 2008). Indeed, “[t]he MSP also creates a private
right of action with double recovery to encourage private parties
who are aware of non-payment by primary plans to bring actions
to enforce Medicare's rights.” Glover v. Liggett Grp., Inc.
459 F.3d
1304, 1307 (11th Cir. 2006).
But Florida’s pre-suit demand statute turns this carefully bal-
anced scheme upside down. Here’s how the pre-suit demand re-
quirement plays out. As the statutory text and history show Con-
gress intended things, an insurance company must affirmatively
seek out secondary payments by Medicare and reimburse Medi-
care—or risk being sued for double damages.
But Florida insurance companies are effectively exempt
from this requirement. They can wait until Medicare has ap-
proached them through a demand letter for payment and then re-
imburse Medicare during Florida’s 30-day cure period without ever
fearing double damages. Florida insurance companies can be safely
passive, secure in the knowledge that if Medicare comes to them,
they will have at least thirty days before being at risk of double
damages. Therefore, Florida private insurers can know that they
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21-12439 Rosenbaum, J., Dissenting in Part 7
owe Medicare money but also that they need pay Medicare back if
and only if Medicare comes to them. And sometimes, Medicare
won’t know and will have to absorb the cost. So we are right back
where we started before Congress acted: Medicare’s costs will rise.
Therefore, Florida’s pre-suit demand require “frustrates” Con-
gress’s purpose.
I respectfully dissent.
