Humana Medical Plan, Inc. v. Western Heritage Insurance Company

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11436
________________________
D.C. Docket No. 1:12-cv-20123-MGC
HUMANA MEDICAL PLAN, INC.,
Plaintiff - Appellee,
versus
WESTERN HERITAGE INSURANCE COMPANY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
Before ED CARNES, Chief Judge, TJOFLAT, HULL*, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, and
NEWSOM, Circuit Judges.**
*
Judge Frank Hull participated in the en banc poll that was conducted in this case before taking
senior status on December 31, 2017.
**
Judge Julie Carnes recused herself and did not participate in the en banc poll.
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BY THE COURT:
A member of this Court in active service having requested a poll on whether
this case should be reheard by the Court sitting en banc, and a majority of the
judges in active service on this Court having voted against granting a rehearing en
banc, it is ORDERED that this case will not be reheard en banc.
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TJOFLAT, Circuit Judge, dissenting:
This case was brought by Humana Medical Plan, Inc., a medical insurer,
against Western Heritage Insurance Company, the liability insurer of an alleged
tortfeasor, to recover the sums Humana paid for the treatment of the injuries its
insured, Mary Reale, sustained due to the tortfeasor’s negligent act.
Under the scenario presented by this case—a common one in insurance
litigation—the medical insurer is a subrogee of its insured’s tort claim to the extent
of the sums it paid for the insured’s treatment.1 Under the common law and/or
state statutory laws that codify the common law, if the insured establishes the
tortfeasor’s liability and the tortfeasor has a liability insurance policy that covers
such liability, the medical insurer has a right to reimbursement of any expenses it
paid on behalf of the insured that were included in the insured’s recovery. This
reflects the basic principle of indemnification behind all sorts of insurance
agreements. See 13 Jeffrey E. Thomas & Francis J. Mootz, III, New Appleman on
Insurance Law Library Edition § 158.02 (2017) (“Although an insurer is
1
At common law, a medical insurer’s entitlement to the proceeds of the insured’s tort
claim is derivative of the medical provider’s lien on the proceeds of the insured’s recovery
representing the insured’s medical expenses. The medical provider treats the patient in exchange
for the patient’s obligation to pay the provider for the treatment rendered. The medical provider
obtains subrogation rights as collateral to secure the patient’s debt. If the patient sues a
tortfeasor for his injuries, the patient gives the medical provider a lien on the portion of the
patient’s recovery paid by the provider. Equitable principles give rise to this lien. See infra n.8
and accompanying text.
Now assume a medical insurer gets involved and pays the medical provider. At the point
at which the insurer pays the provider for the treatment it provided to the insured, the insurer
acquires the provider’s lien on the insured’s recovery for his medical expenses (but not the
provider’s claim against the patient for payment).
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responsible for making payment, the wrongdoer is thought to be socially
responsible. Placing the ultimate responsibility on the party who committed the
breach or tort promotes social justice.”). This right to recovery also prevents
unjust enrichment: without the reimbursement right, the insured would enjoy a
double recovery.
In this case, Reale sued the alleged tortfeasor in state court. The case settled
without an admission of liability by the tortfeasor. Reale released her claim
against the tortfeasor and Western, as the tortfeasor’s liability insurer, for an
amount that included the sums Humana, her medical insurer, had expended on her
behalf. The state court, applying state law, honored Humana’s right to
reimbursement but awarded Humana only a portion of the sums it paid on Reale’s
behalf. Unsatisfied with the award, Humana filed the lawsuit now before this
Court, seeking further reimbursement from Western under federal law. Humana’s
complaint alleged that an act of Congress entitled it to recover from Western twice
the amount it had expended for Reale’s treatment, notwithstanding (i) that Reale
had released her claim against Western when she settled her case against the
tortfeasor (without the tortfeasor’s admission of liability); and (ii) that Western,
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having remitted the proceeds of the settlement, was rendered immune from suit
under state law.2
Is it possible that Congress provided Humana, and other medical insurers
similarly situated, such an entitlement? Humana says yes, in the Medicare
Secondary Payer Act (“MSP Act”). Humana, as a Medicare Advantage
Organization (“MAO”), contracts with Medicare insureds to provide them with
Medicare and other benefits. In the scenario portrayed above, because Humana did
not receive full reimbursement from the proceeds of Reale’s settlement, the MSP
Act, according to Humana, provided it with a cause of action against Western for
twice the amount it paid for Reale’s medical care and treatment. All Humana had
to do to recover that amount was establish the tortfeasor’s liability for Reale’s
injuries and that Western covered that liability. Reale’s settlement with Western
established that. This notwithstanding that the tortfeasor and Western had settled
Reale’s claim without admitting fault and that Reale—by releasing her claim
against them—effectively exonerated them of all state-law liability.
The District Court accepted Humana’s interpretation of the MSP Act, and
therefore concluded that MAOs like Humana have a cause of action against
2
As indicated in note 1, supra, Humana paid Reale’s medical providers and received in
exchange those providers’ liens on Reale’s recovery from Western. In suing Western, Humana
was not seeking to enforce the liens it acquired from Reale’s medical providers. Rather, Humana
sought to cash in on an entitlement to full reimbursement it allegedly received under federal law.
That entitlement, according to Humana, came to fruition once Western settled with Reale,
compensated her for her medical expenses, and refused to reimburse Humana for those expenses
thereafter.
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liability insurers like Western for damages in double the amount of their
reimbursement claims. Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 94 F.
Supp. 3d 1285 (S.D. Fla. 2015). The District Court reached this conclusion
without discussing the displacing effect its holding would have on state
subrogation laws in this Circuit. Nor did the Court appear concerned that its
holding would nullify totally the release Reale gave the tortfeasor and Western.
Western appealed, and a divided panel of this Court affirmed. Humana Med.
Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016).3
This Court has voted to deny rehearing en banc. I dissent. The statutory
right of action cited by Humana, the District Court, and the panel majority was not
intended to protect MAOs. The policy reasons behind the right of action differ
starkly from those which motivated the creation of the Medicare Advantage
program. Moreover, the statutory text of the right of action never references
Medicare Advantage insurers at all. Nor could it: the right of action predated the
Medicare Advantage program, and the statute that codified Medicare Advantage
insurers’ common law subrogation rights, by seventeen years.
Below, I begin my discussion of the case at hand with an overview of
Medicare’s statutory scheme, followed by an explanation of how Medicare
3
In affirming the District Court’s judgment, the panel agreed with the Third Circuit’s
decision in In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., which also concluded that
the MSP Act affords MAOs a federal right to sue liability insurers for double damages. 685 F.3d
353, 367 (3d Cir. 2012).
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Advantage works. I then explain why transmuting the private right of action meant
for the traditional Medicare scheme into the Medicare Advantage setting defies the
plain statutory text and ignores the policy reasons behind traditional Medicare and
Medicare Advantage, respectively. Finally, I show how the Court’s decision
destroys the state-law framework that already exists to protect the subrogation
rights of private insurers, like MAOs, and significantly frustrates the long-
established public-policy goal of favoring compromise and settlement of civil
claims in place of expensive, and here duplicative, litigation. Under the Court’s
holding, these results are the heavy price paid to afford MAOs a strict right to
recover double their outlays from nonpaying liability insurers.
I.
A. Traditional Medicare
Under the traditional Medicare framework, the Government acts as the
health insurer, so it pays medical expenses directly out of the public fisc. Ctrs. for
Medicare & Medicaid Servs., How Is Medicare Funded?, Medicare.gov (last
visited Jan. 12, 2018), https://www.medicare.gov/about-us/how-medicare-is-
funded/medicare-funding.html. In 1980, Congress enacted the MSP Act to protect
the Medicare Trust Funds and rein in Medicare costs, which at that time were
vastly exceeding actuarial projections. 5 James B. Wadley, West’s Federal
Administrative Practice § 6305 (2017). To accomplish this purpose, the Act, 42
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U.S.C. § 1395y, gave the Government rights similar to the subrogation rights of
private insurers under state law when the Government pays medical expenses on
behalf of a beneficiary injured by a tortfeasor (or, put differently, acts as a
“secondary payer”). The Act states that when Medicare compensates a
beneficiary’s covered medical expenses and another insurer—like a tortfeasor’s
liability insurer—also covers those expenses, then Medicare must condition its
payment on reimbursement by that insurer (the primary payer), which must
reimburse the Government within sixty days of receiving notice that it is
responsible for the monies paid by the Government. See id. § 1395y(b)(2)(B)(i)–
(ii). Thus, as with private insurers under state law, in a case in which both
Medicare (acting as a person’s health insurer) and a tortfeasor’s liability insurer
cover the same medical expenses, this has the effect of making Medicare an insurer
of last resort.
Yet the MSP Act affords the Government even stronger reimbursement rights
than private insurers possess under state law. There, a secondary payer can seek
reimbursement from an insured who received payment from a tortfeasor’s liability
insurer. Under the MSP Act, however, the Government can seek reimbursement
from the beneficiary who has been compensated or from the tortfeasor’s liability
insurer directly. And this recovery right is not disturbed by any payments the
liability insurer might have made already: the Government can recover its outlays
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from the liability insurer even though the insurer has already paid those outlays to
the beneficiary in satisfaction of a settlement or judgment. See id. §
1395y(b)(2)(B)(ii) (“[A] primary plan, and an entity that receives payment from a
primary plan, shall reimburse the appropriate Trust Fund for any payment made by
the [Government] under this subchapter with respect to an item or service if it is
demonstrated that such primary plan has or had a responsibility to make payment
with respect to such item or service.” (emphasis added)). Stated differently, a
beneficiary’s release of a liability insurer does not extinguish the liability insurer’s
obligation, as a primary payer, to reimburse the Government. The Government
does not occupy the status of a subrogee of part of the beneficiary’s claim against
the tortfeasor; it has reimbursement rights as against the tortfeasor’s liability
insurer that are independent of the insured’s right of action for recovery under tort
law.
1. The Government Right of Action
To enforce this right, Congress created a right of action whereby the
Government can seek double damages from a primary payer who has failed to
reimburse the funds it owes in a timely fashion. See id. § 1395y(b)(2)(B)(iii). The
right of action is triggered when the primary payer’s responsibility to reimburse the
Government has been demonstrated by a judgment, settlement payment, or “by
other means.” Id. § 1395y(b)(2)(B)(ii).
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2. The Private Right of Action
In addition to the reimbursement right it provided the Government in the
MSP Act, Congress also gave individuals who receive Medicare benefits a right to
sue primary payers who fail to pay or reimburse the expenses for which they are
responsible. That right of action, 42 U.S.C. § 1395y(b)(3)(A), states:
There is established a private cause of action for damages (which
shall be in an amount double the amount otherwise provided) in the
case of a primary plan which fails to provide for primary payment (or
appropriate reimbursement) in accordance with [the MSP Act].
A beneficiary can invoke this right of action whenever a primary payer fails to live
up to its responsibilities under the MSP Act, regardless of whether Medicare has
chosen to make a conditional payment of medical expenses on behalf of the
beneficiary. See Stalley v. Catholic Health Initiatives, 509 F.3d 517, 527 (8th Cir.
2007) (“Congress contemplated that Medicare beneficiaries could recover double
damages to vindicate their private rights when their primary payers fail to live up to
their obligations, even if Medicare has made a conditional payment of the
beneficiaries’ expenses.”). This is so because Medicare’s secondary payment on
behalf of the beneficiary does not completely release the beneficiary of her
responsibility to pay her providers for her treatment. See id. at 526 (“Congress
must have intended that a Medicare beneficiary could sue its primary insurer for
expenses Medicare had already paid. . . . The idea that Congress expected the
beneficiary to be able to sue to vindicate his or her own contractual and tort
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interests is bolstered by the fact that the beneficiary’s expenses will have only been
paid ‘conditionally’ by Medicare, which leaves the beneficiary with less than a
final settlement of his or her liability to the health-care providers.” (citation
omitted)).
In conjunction with the Government right of action, this right of action
authorizes what is at bottom a debt-collection proceeding. A primary payer must
reimburse the Government once it receives notice that the Government is a
secondary payer, e.g., that Medicare made a payment of the beneficiary’s medical
expenses conditioned on reimbursement. 42 U.S.C. § 1395y(b)(2)(B)(ii). A
judgment against the tortfeasor or a settlement agreement between the tortfeasor’s
liability insurer and the beneficiary triggers this responsibility. Id. Once the
judgment is entered or settlement agreement is executed, the Government will
demand reimbursement. If the primary payer rejects the demand, either the
Government or the beneficiary can sue the primary payer for double the amount
owed by the primary payer. Either can do so regardless of whether the primary
payer has paid the settlement or judgment to the beneficiary, because the
Government’s right of reimbursement is distinct and independent from the
beneficiary’s right to recover his medical expenses in tort.
In this case, however, the question is whether an MAO, a private insurer, has
the same independent right of reimbursement under the Medicare Advantage
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program as does the Government under traditional Medicare. If it does, the MAO
can recover double damages from the primary payer once the primary payer’s
liability is established through settlement with the Medicare beneficiary or the
satisfaction of a judgment for the beneficiary and the primary payer refuses to pay.
The MAO can recover double damages even though the primary payer has already
paid the MAO’s outlays to the Medicare beneficiary. Under this reading of the
private right of action, the primary payer must pay the MAO’s outlays twice: once
to the beneficiary to obtain a release or a satisfaction of judgment and once to the
MAO to satisfy the MAO’s reimbursement right. This is a question of first
impression. Before answering that question, however, we must first consider how
Medicare Advantage functions in comparison to traditional Medicare.
B. Medicare Advantage
Congress created Medicare Advantage to “utilize innovations that have
helped the private market contain costs and expand health care delivery options.”
H.R. Rep. No. 105-217, at 585 (1997) (Conf. Rep.), reprinted in 1997
U.S.C.C.A.N. 205–06. Under Medicare Advantage, private insurers contract with
the Government, namely the Center for Medicare Services (“CMS”), to provide
Medicare benefits to eligible individuals. U.S. Gov’t Accountability Off., GAO-
14-417T, Medicare: Contractors and Private Plans Play a Major Role in
Administering Benefits 6 (2014). MAOs may also provide additional coverage of
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medical services not covered by Medicare. Id. CMS pays each MAO a fixed
monthly payment, which is adjusted for insureds’ health status and demographics,
for each person enrolled in the MAO’s plan. Id. MAOs are then left to manage
those funds (along with the premiums, if any, they charge insureds to provide
additional benefits not covered by Medicare) independently and can even include
additional benefits, so long as their members receive all the Medicare benefits to
which they are entitled. See 42 U.S.C. § 1395w-22(a)(1)–(3). Thus, once it has
received its fixed allotment from CMS, an MAO pays any covered medical
expenses out of its own funds, not the Medicare Trust Funds.
This system is much different from traditional Medicare, where providers
administer Medicare benefits and seek reimbursement directly from the
Government for each individual medical service or procedure performed by
physicians. Because MAOs receive a fixed amount of money from the
Government and are left with discretion to manage those funds on their own as
long as they provide their insureds with full Medicare benefits, MAOs accept the
risk of loss if the subsidies they receive from the Government and any additional
premiums they might charge for additional benefits are not enough to pay for all of
those benefits. At the same time, however, MAOs stand to gain if their business
practices and innovations save costs such that they can provide their insureds with
full benefits at an operating cost lower than the amount they get from the
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Government. In this way, the Government’s per capita payments incentivize the
private market innovations that motivated Congress’s creation of the Medicare
Advantage program.
II.
Like Judge William Pryor, whose incisive dissent from the Court’s opinion I
echo and build upon, I disagree with the Court’s construction of the private right of
action. As Judge Pryor discusses aptly, this case should begin and end with the
statutory text, which clearly excludes MAOs from the private right of action. See
Humana, 832 F.3d at 1243 (Pryor, J., dissenting). Even if the text were not
enough, the divergent policies underlying the MSP Act and the Medicare
Advantage program confirm this conclusion. And to add icing on a cake already
frosted, the panel majority’s construction exterminates the state-law background
that already protected private insurers like MAOs and substitutes in its place a
scheme that is at once nonsensical and punitive. I discuss each of these points in
turn.
A.
I begin with the MSP Act’s text. Our task is to “interpret the relevant words
[of a statute] not in a vacuum, but with reference to the statutory context.” Torres
v. Lynch, 578 U.S. ____, 136 S. Ct. 1619, 1626 (2016). As Judge Pryor notes, the
scope of the private right of action, 42 U.S.C. § 1395y(b)(3)(A), is limited by its
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references to paragraphs (1) and (2)(A) of § 1395y(b), the MSP Act’s secondary
payment provision. Humana, 832 F.3d at 1240–41 (Pryor, J., dissenting).
Paragraph (1) generally prohibits primary plans from denying benefits on the
ground that an individual is eligible for Medicare Part A. See 42 U.S.C. §
1395y(b)(1). That provision has no bearing in this appeal. Paragraph (2)(A)
addresses only payment by the Government out of the Government’s coffers.4 It
4
The full text of Paragraph (2) reads:
(2) Medicare secondary payer
(A) In general
Payment under this subchapter may not be made, except as provided in
subparagraph (B), with respect to any item or service to the extent that–
(i) payment has been made, or can reasonably be expected to be made, with respect
to the item or service as required under paragraph (1), or
(ii) payment has been made or can reasonably be expected to be made under a
workmen’s compensation law or plan of the United States or a State or under an
automobile or liability insurance policy or plan (including a self-insured plan) or
under no fault insurance.
In this subsection, the term “primary plan” means a group health plan or large group
health plan, to the extent that clause (i) applies, and a workmen’s compensation law
or plan, an automobile or liability insurance policy or plan (including a self-insured
plan) or no fault insurance, to the extent that clause (ii) applies. An entity that
engages in a business, trade, or profession shall be deemed to have a self-insured
plan if it carries its own risk (whether by a failure to obtain insurance, or otherwise)
in whole or in part.
(B) Conditional payment
(i) Authority to make conditional payment
The Secretary may make payment under this subchapter with respect to an item or
service if a primary plan described in subparagraph (A)(ii) has not made or cannot
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does so by referencing subparagraph (B), which refers repeatedly and exclusively
to the Secretary of Health and Human Services and the Medicare Trust Funds:
“[t]he Secretary may make payment,” “[a]ny such payment by the Secretary shall
be conditioned on reimbursement to the appropriate Trust Fund,” “an entity that
receives payment from a primary plan[] shall reimburse the appropriate Trust Fund
for any payment made by the Secretary,” and “[i]f reimbursement is not made to
the appropriate Trust Fund . . . the Secretary may charge interest.” Id. §
1395y(b)(2)(B)(ii) (emphasis added). An MAO is not the Secretary of Health and
Human Services, and it does not make payments out of the Medicare Trust Funds.
It is a private actor paying claims out of private funds. As a result, this should be
reasonably be expected to make payment with respect to such item or service
promptly (as determined in accordance with regulations). Any such payment by the
Secretary shall be conditioned on reimbursement to the appropriate Trust Fund in
accordance with the succeeding provisions of this subsection.
(ii) Repayment required
Subject to paragraph (9), a primary plan, and an entity that receives payment from a
primary plan, shall reimburse the appropriate Trust Fund for any payment made by
the Secretary under this subchapter with respect to an item or service if it is
demonstrated that such primary plan has or had a responsibility to make payment
with respect to such item or service. A primary plan’s responsibility for such
payment may be demonstrated by a judgment, a payment conditioned upon the
recipient’s compromise, waiver, or release (whether or not there is a determination
or admission of liability) of payment for items or services included in a claim
against the primary plan or the primary plan’s insured, or by other means. If
reimbursement is not made to the appropriate Trust Fund before the expiration of
the 60-day period that begins on the date notice of, or information related to, a
primary plan’s responsibility for such payment or other information is received, the
Secretary may charge interest (beginning with the date on which the notice or other
information is received) on the amount of the reimbursement until reimbursement is
made (at a rate determined by the Secretary in accordance with regulations of the
Secretary of the Treasury applicable to charges for late payments).
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the end of the matter: when an MAO seeks reimbursement from a liability insurer
and the liability insurer fails to pay, the liability insurer has not “fail[ed] to provide
for primary payment (or appropriate reimbursement) in accordance with
paragraphs (1) and (2)(A).” Id. § 1395(b)(3)(A) (emphasis added).
B.
Moving beyond the plain text, further contextual analysis confirms that
MAOs cannot recover under the private right of action. At the time Congress
enacted the MSP Act, all Medicare plans operated in the traditional Medicare
environment. In that setting, when the Government acts as a secondary payer, it
pays a specific amount for a specific service. And, most importantly, it pays
directly out of its own coffers—namely, the Medicare Trust Funds.
Not surprisingly then, the Government is prohibited generally from paying
claims for which primary payers are responsible. The only exception is when a
primary payer “has not made or cannot reasonably be expected to make payment .
. . promptly.” Id. § 1395y(b)(2)(B)(i). In such a case, the Government has
discretion to pay the claim, so long as it conditions its payment on reimbursement
by the primary payer. Id. Thus, this exception allows the Government to balance
its need to protect the public fisc with the financial needs of the harmed Medicare
beneficiary in need of benefits.
Of course, when the Government does elect to pay expenses before a
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primary payer does so, it must assume the risk that the primary payer will delay or
avoid repayment of the public’s funds. What’s more, if a primary payer fails to
pay the Government back, the Government must employ a cumbersome debt-
recovery procedure to seek the funds it is owed. If the primary payer fails to
reimburse the Government within sixty days of receiving notice of its responsibility
to do so, the Secretary of Health and Human Services may begin to charge interest.
Id. § 1395y(b)(2)(B)(ii). After 180 days, the Secretary then refers the interest-
accruing debt to the Department of the Treasury, which attempts to collect it. 31
U.S.C. § 3711(g)(1)(A)–(B). If the Treasury Department’s debt-collection efforts
fail, it refers the debt either back to CMS or to the Department of Justice for
litigation. Id. § 3711(g)(4)(A), (C). If, at this point, the Government chooses to
litigate against the delinquent primary payer, then it may seek double damages. 42
U.S.C. § 1395y(b)(2)(B)(iii).
In contrast, in the Medicare Advantage context, the Government simply pays
MAOs a fixed, per capita payment and leaves it to the MAOs to pay their insureds’
expenses as they arise. That fixed payment is set before the Government contracts
with an MAO to provide coverage. This arrangement gives MAOs more flexibility
to manage benefits administration as they see fit (so long as they provide the same
benefits that the Government provides to beneficiaries in traditional Medicare).
But this also creates more risk for MAOs as compared to traditional Medicare
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providers: because CMS payments to MAOs are fixed, MAOs bear the risk that
plan expenditures will exceed plan revenues. Of course, risk is a two-way street,
so when revenues exceed expenditures, MAOs keep the resulting profit.5
Under this arrangement, when MAOs pay claims, they draw upon their own
coffers rather than the Medicare Trust Funds. Thus, when a manager of an MAO
decides whether to make a secondary payment out of her organization’s funds, she
is guided by a desire to maximize shareholder profits. Hence, MAOs agree, at the
time of contracting with CMS, to bear the risk of loss if the Government’s rate is too
low to cover their insureds’ expenses. This has the effect of shifting the risk of loss
away from the Government and toward the MAO.
MAOs also have greater flexibility with regard to seeking reimbursement of
their secondary payments. If an MAO chooses to issue a secondary payment
pursuant to the exception in § 1395y(b)(2)(B)(i), federal law simply says that it
“may . . . charge” the primary payer thereafter.6 Id. § 1395w-22(a)(4)(A)
(emphasis added).7 Secondary-payment-recovery methods also differ greatly as
5
MAO profits are restrained by the requirement that MAOs must use at least 85 percent
of their total revenue to pay for incurred claims and activities that improve health-care quality.
42 U.S.C. § 1395w-27(e)(4); 42 C.F.R. § 422.2420(b)(1).
6
Contrast that optional language with the mandatory language used in the traditional
Medicare environment when Medicare is the secondary payer and Medicare Trust Fund money is
at stake: “Any [secondary] payment by the Secretary shall be conditioned on reimbursement to
the appropriate Trust Fund.” 42 U.S.C. § 1395y(b)(2)(B)(i) (emphasis added).
7
MAOs are left to make such decisions on the basis of their own data. CMS collects, but
does not share with MAOs, information about insurers that may be primarily responsible for
health expenses incurred by Medicare beneficiaries. See 42 U.S.C. § 1395y(b)(7)(A)(i)
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between the Government as secondary payer and MAOs as secondary payers.
While the Government must follow the statutory debt-collection scheme to avail
itself of the double-damages remedy, an MAO may sue to collect payment from a
primary payer (and thus to enhance its own bottom line) without following any such
procedure. Indeed, nothing in the MSP Act or the Medicare Advantage program
alters MAOs’ state-law rights to be subrogated to the rights of their insureds—to
obtain reimbursement from the third-party tortfeasor’s insurer or the tortfeasor
himself.
In sum, the Medicare statute leaves MAOs free to follow their own
protocols, and rely on their own data, with respect to both issuing secondary
payments and recovering from primary plans. It should be clear from this analysis
that Congress would have no reason to create a double-damages remedy for MAOs
to recover from primary payers, and in the process of doing so replace state-law
subrogation rights. The double-damages rights of action were enacted against the
backdrop of the MSP Act’s overarching policy goal: to protect the Medicare Trust
Funds. Given the lengthy, resource-draining procedure the Government must
follow to recover funds, it is unsurprising that it can eventually recover double
(requiring insurers to submit information to the Secretary “for the purpose of identifying
situations where the [insurer] is or has been a primary plan”); Jennifer Jordan, Is Medicare
Advantage Entitled to Bring a Private Cause of Action Under the Medicare Secondary Payer
Act?, 41 Wm. Mitchell L. Rev. 1408, 1417 (2015) (“CMS does not share Section 111 Mandatory
Insurer Reporting (MIR) information with MAOs to assist in coordination of secondary payer
provisions.”).
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damages.
So why the double-damages provision in the private right of action? In
addition to providing an extra layer of protection to the Medicare Trust Funds, the
private right of action also protects Medicare beneficiaries from suffering when a
primary payer fails to satisfy its payment obligations under the MSP Act—when
the Government makes a conditional secondary payment or when it does not.
When it does not, the beneficiary will suffer greater harm because his medical
expenses remain unpaid. Either way, when a primary payer withholds
compensation of medical expenses for which it is responsible, someone will suffer:
either the Government, which must draw on the Medicare Trust Funds, or the
beneficiary, who might suffer financially while remaining liable for payment of
medical expenses until the primary payer or the Government foots the bill. Thus,
the private right of action provides for double damages in order to do two things:
first, dissuade primary payers from shirking their payment responsibilities; and
second, protect either the Government (where the Government has elected to pay
expenses conditioned on reimbursement) or the beneficiary (where the Government
has elected not to pay those expenses), depending on who was harmed by the
delinquency.
But this calculus is different when it comes to MAOs. Because the
Government pays a per capita rate to MAOs, the Medicare Trust Funds are not
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impacted by a primary payer’s failure to reimburse an MAO. When an MAO,
rather than the Government, pays expenses, double damages are not needed to
dissuade a primary payer from impacting negatively the Medicare Trust Funds,
because the Medicare Trust Funds are insulated from the primary payer’s
delinquency. This is all by design: the contractual relationship between the
Government and MAOs shifts the financial risk away from the public fisc and
toward MAOs’ business objectives. Even so, MAOs do not have to follow the
cumbersome debt-recovery procedure the Government must employ to bring suit to
recover from primary payers.
Further, awarding double damages to MAOs is not necessary to protect the
interests of their insureds. As discussed, MAOs have greater flexibility when it
comes to paying and seeking reimbursement. Under the MSP Act and the
Medicare Advantage program, an MAO is well within its legal rights if—pursuant
to a contractual provision subrogating it to its insured’s right to recover medical
expenses from a primary payer—it chooses to simply refuse payment in a case in
which a primary payer is responsible under the MSP Act for medical expenses
incurred by an insured. That MAOs can choose to pay and seek reimbursement
does not mean that they must do so. Further, that MAOs may refuse to pay such
claims strictly for purposes of increasing their bottom line certainly does not turn
their insureds into clay pigeons: a harmed insured can avail himself of the private
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right of action and recover double damages from the delinquent primary payer.
Hence, allowing MAOs to recover double damages against a primary payer that
refuses to reimburse them for payments the MAOs elected to make—
notwithstanding MAOs’ legal right to refuse to pay in the first place—simply
creates a windfall for MAOs that do elect to pay.
Put simply, neither the private right of action’s text nor the policy it
implements warrants extending its double-damages entitlement to MAOs.
C.
Moreover, nothing in the Medicare Act, and nothing in the Medicare
Advantage program, preempts MAOs’ subrogation rights under state law. In fact,
the latter expressly preserves them. But the panel majority’s decision renders those
rights irrelevant due to the ruthless and logic-defying scheme it creates.
1. Medical Insurers’ Rights Under State Law
At common law, once a tortfeasor’s liability is established by a judgment
for the insured that includes compensation for medical expenses paid by a
medical insurer as a secondary payer, or once the tortfeasor agrees to a settlement
that includes such expenses, the medical insurer has the right to seek
reimbursement of the sums it expended. The medical insurer can preserve this
right by including a reimbursement provision in its contract with the insured. If
the insured refuses to reimburse, the medical insurer can seek to enforce the
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contract. See, e.g., Jacob A. Stein, 2 Stein on Personal Injury Damages § 7:35
(3d ed. 2017).
In addition, many jurisdictions create a reimbursement right by operation
of law, so that a medical insurer may recover the monies it paid from the insured
even in the absence of a reimbursement provision in the contract. See, e.g., Fla.
Stat. § 768.76(4) (“A provider of collateral sources that has a right of subrogation
or reimbursement that has complied with this section shall have a right of
reimbursement from a claimant to whom it has provided collateral sources if such
claimant has recovered all or part of such collateral sources from a tortfeasor.”
(emphasis added)); Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d
123, 124 (Fla. Dist. Ct. App. 1990) (explaining that “Section 768.76(1) does not
require a contractual right” for an insurer to recover payments made to a plaintiff
who subsequently recovers those payments from a tortfeasor). This is known as
“equitable subrogation.” See Thomas & Mootz, supra, at § 158.05 (“Equitable
subrogation . . . is permitted in situations where fairness requires it. . . .
[E]quitable subrogation rights arise simply by virtue of the payment made by the
insurer [on behalf of its] insured. . . . There is no reliance on a written contract or
express agreement.”).8
8
All three states in this Circuit recognize the rights of medical insurers to seek
reimbursement under both contract law and under the doctrine of equitable subrogation. Georgia
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Whether the medical insurer’s reimbursement rights are contractual or
equitable, the medical insurer’s reimbursement right arises from its relationship
with the insured. Because a tortfeasor’s liability insurer has no legal relationship
recognizes contractual reimbursement by statute, as long as the plaintiff has been made whole by
the judgment or settlement. O.C.G.A. § 33-24-56.1(b) states,
In the event of recovery for personal injury from a third party by or on behalf of a
person for whom any benefit provider has paid medical expenses or disability
benefits, the benefit provider for the person injured may require reimbursement
from the injured party of benefits it has paid on account of the injury, up to the
amount allocated to those categories of damages in the settlement documents or
judgment, if:
(1) The amount of the recovery exceeds the sum of all economic and noneconomic
losses incurred as a result of the injury, exclusive of losses for which reimbursement
may be sought under this Code section; and
(2) The amount of the reimbursement claim is reduced by the pro rata amount of the
attorney’s fees and expenses of litigation incurred by the injured party in bringing
the claim.
Georgia courts also recognize a medical insurer’s right to seek reimbursement under
equitable principles, to wit, preventing double recovery. See Carter v. Banks, 254 Ga. 550, 552,
330 S.E.2d 866, 867–68 (Ga. 1985) (“The right of subrogation can arise from one of three
sources. (1) It is an equitable principle founded on the proposition that an insured ought not to
collect damages for his loss from both his insurer and the tortfeasor, a double recovery.
Therefore, in the eyes of equity, the insurer who has paid the insured his loss should recover
from the tortfeasor. . . . (2) It may arise out of the contract between the insurer and the insured.
This is sometimes referred to as “conventional subrogation.” (3) The right may be declared by
statute.” (citations omitted)).
Alabama recognizes subrogation rights under principles of equity. See Int’l
Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163, 164 (Ala. 1989), opinion reinstated sub nom.
Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543 (Ala. 2000) (“Subrogation is an equitable
doctrine intended to prevent the insured from recovering twice for a single injury and to
reimburse the insurer for payments it made that should, in fairness, be borne by another. When
the insured recovers the full amount of his damages from a third-party tort-feasor, the insurer is
entitled to reimbursement of payments made on the policy.” (citations omitted)). Under
Alabama law, medical insurers can recover their outlays even before the plaintiff has been made
whole. Ex parte State Farm, 764 So. 2d at 545.
Florida recognizes a medical insurer’s subrogation rights under both contractual and
equitable principles. Its reimbursement statute is discussed above. Like Georgia, Florida
requires the plaintiff to have been made whole before his medical insurer may invoke its
subrogation rights. Humana Health Plans v. Lawton, 675 So. 2d 1382, 1384 (Fla. Dist. Ct. App.
1996).
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with the plaintiff’s medical insurer, the liability insurer owes no independent duty
to reimburse the medical insurer. See, e.g., O.G.G.A. § 33-24-56.1(e)
(“Subrogation for medical expenses and disability payments by a benefit provider
against a person at fault for injury is prohibited and no defendant or liability
insurance carrier shall include any insurer seeking reimbursement . . . as a
copayee on any check or draft in payment of a settlement or judgment.”); 15
Appleman on Insurance Law & Practice Archive § 111.1 (2nd ed. 2011) (“Even
though third party claimants are third-party contract beneficiaries under a liability
insurance contract, these third-party claimants have no direct right to sue the
liability insurer for direct payment. Absent a state statute or judicial decision, a
third-party claimant cannot sue a liability insurer directly until the third party
obtains a judgment against the insured or a settlement agreement.”). To secure
reimbursement, then, the medical insurer must go after the insured—the person
with whom it has a contractual relationship.
The Medicare Advantage program preserves and codifies this common law
reimbursement right for private insurers acting as MAOs. 42 U.S.C. § 1395w-
22(a)(4) says an MAO that issues a secondary payment pursuant to the MSP Act
“may . . . charge” either the primary payer or the insured to the extent the insured
has received payment from a primary payer. Indeed, the statute says that MAOs
may do so “notwithstanding any other provision of law.” Id. Hence, the Medicare
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Advantage statute preempts any state-law provisions that abridge the codified right
of MAOs to seek reimbursement.9
2. The Old Litigation Model
The litigation model that has developed at common law reinforces these
state-law rights. That model proceeds as follows. Suppose a person with medical
insurance is injured as a result of a tortfeasor’s conduct. The insured’s medical
insurer pays medical expenses on the insured’s behalf. The insured (the medical
insurer’s subrogor) files suit against the tortfeasor, in which the insured’s claim
includes the medical insurer’s claim for medical expenses. In such a case, the
insured is effectively suing for the use and benefit of the medical insurer, the
subrogee of the insured’s claim.
Thus, whether they arise by contract or in equity, the medical insurer’s
rights in the case are derived from the medical insurer’s relationship with the
insured who filed the suit. The medical insurer therefore cannot independently
bring its claim for expenses against the tortfeasor, because it has no legal rights as
against the tortfeasor outside of its relationship with the insured. If the insured
were to sue the tortfeasor for a portion of his damages and then later sue the
tortfeasor a second time to recover the medical expenses paid by the medical
9
This is an example of conflict preemption. See Hines v. Davidowitz, 312 U.S. 52, 67,
61 S. Ct. 399, 404 (1941) (“Our primary function is to determine whether, under the
circumstances of this particular case, [a state] law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”).
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insurer, the insured would be barred from doing so under state rules against
splitting causes of action. So, too, would the medical insurer be barred, because
the medical insurer can only claim rights against the tortfeasor while standing in
the shoes of the insured.
However, this limitation on the insurer’s right to sue the tortfeasor does not
frustrate the medical insurer’s subrogation rights. State subrogation laws protect
the medical insurer’s interest in the insured’s tort claim by allowing the insurer to
intervene in the suit to obtain its share of the recovery from the tortfeasor. If the
medical insurer intervenes in the insured’s suit, its presence in the suit will not
normally be communicated to the jury, because notifying the jury that an insurance
company “owned” the insured’s claim could prejudice the claim. See, e.g., Ala. R.
Evid. 408(a)(1) (prohibiting use of settlement offers or agreements to establish the
liability of or amount owed by a party). Plus, this arrangement is often more
advantageous to the medical insurer at the end of the day: recovery by the insured
of other special damages like pain and suffering tends to have a multiplying effect
on his recovery of medical expenses.
If the insured prevails, unless the insured and the medical insurer have
agreed previously on what portion of the recovery should be signed over to the
medical insurer, the court will decide how to apportion the award. See, e.g.,
Magsipoc v. Larsen, 639 So. 2d 1038, 1043 (Fla. Dist. Ct. App. 1994) (“A
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preferable middle ground is to empower the trial court as a fact-finder to determine
what portion (if any) of the settlement is fairly allocable to medical costs and
expenses in the equitable distribution proceeding.”). This gives the court
discretion, in deciding how to divvy up the funds, to weigh the equities of the case,
such as how much is needed to make the insured whole and whether the insured
has a contractual obligation to reimburse the medical insurer for the claimed
expenses.
3. The Impact of This Court’s Decision on the State-Law Scheme
In light of the well-established and effective scheme detailed above, and the
Medicare Advantage Act’s express statutory preservation of that scheme, why
would an MAO need to avail itself of the MSP Act’s private right of action? Well,
it wouldn’t. But alas, this Court’s decision renders the above provision irrelevant.
As framed by the Court’s decision, an MAO’s reimbursement right is vastly
expanded. The MAO is entitled to a strict right of full recovery from a primary
payer for expenses it incurred on an insured’s behalf, to the extent those expenses
were proximately caused by the tortfeasor, provided only that the primary payer
insured the tortfeasor’s liability. An MAO may enforce this right even though the
tortfeasor’s insurer previously remitted the expenses in settling the insured’s tort
claim or in satisfying the insured’s judgment.
Thus, this Court’s opinion amounts to a rewriting of state insurance laws.
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An MAO who makes a secondary payment now has a right to seek reimbursement
of its outlays from the tortfeasor’s liability insurer that is independent of its
insured’s rights under tort law. Therefore, the MAO is in effect an unnamed
beneficiary of the liability insurer’s policy. The MAOs’ rights are no longer
derivative but primary.
As a result, many substantive state-law rules are rendered inoperative. In
cases that ended in settlement, this has the effect of rendering releases of liability
under state law a nullity, because an insured’s release executed in favor of the
liability insurer cannot release the liability insurer from the reimbursement
responsibility it has to MAOs that is independent of its responsibilities to
recompense the insured. And state laws precluding the use of a compromise
settlement to establish a tortfeasor’s (and thus the liability insurer’s) liability are
no longer of moment. Au contraire, a liability insurer’s execution of a settlement
agreement creates its liability to the MAO.
In cases that ended in judgment, satisfaction of the judgment by the liability
insurer does not alter the MAO’s right to seek reimbursement from the liability
insurer after the fact. Normally, “satisfaction of [a] judgment on the record
extinguishes the claim and ends the controversy.” 47 Am. Jur. 2d Judgments §
766. Not so here. The MAO’s “controversy” with the liability insurer cannot end
with termination of the insured’s “controversy,” because the two “controversies”
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are unrelated to one another. Unrelated, that is, with one glaring exception: the
liability insurer’s duty to reimburse the MAO is triggered by the termination of its
controversy with the insured, because any resolution of that case operates as a de
jure adjudication of its liability to the MAO.
So, too, does the private right of action, as interpreted by the Court, render
inoperative the corollary rule against splitting causes of action. See Philip J.
Padovano, 5 Florida Civil Practice § 3:6 (2018) (“All damages flowing from an
event or transaction must be claimed in a single lawsuit. . . . [T]he courts have said
that a party may not split an action arising from a single event into two or more
claims for damages.”). Here, not only is a separate cause of action over the same
conduct authorized; the majority’s rule works such that a judgment in one suit
creates the basis for a second, split cause of action over the same conduct.
In addition, state equitable doctrines preventing unjust enrichment of the
insured have no bearing in the Medicare Advantage context. Because an MAO has
an independent right to seek reimbursement of its outlays from the tortfeasor’s
liability insurer, it need not seek reimbursement from its insured if the insured
recovered those outlays from its tort suit. The insured can keep the portion of the
settlement or judgment that would have been apportioned to the medical insurer
under the former litigation model. Hence, as illustrated by the result of the instant
case, double recovery is now permitted.
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4. This Court’s New Litigation Model
As a result of these sweeping changes to the old scheme, the litigation
model must adapt as well. To begin, settlements will be virtually eliminated. See
infra p. 29. Suppose the case does not settle and is tried. The insured obtains a
judgment, which includes the MAO’s expenses, against the tortfeasor, and the
liability insurer satisfies the judgment. The judgment established the liability
insurer’s responsibility to reimburse the MAO; hence, the MAO—having
remained silent during the insured’s controversy with the tortfeasor—demands
payment from the liability insurer. Since it already paid the MAO’s outlays to the
insured in satisfaction of the judgment, the liability insurer may refuse to pay the
MAO. If it does so, the MAO can sue the liability insurer for double damages. If
the liability insurer defends on the ground that res judicata bars the MAO’s claim,
the liability insurer will lose. Although the injury giving rise to the MAO’s
payment of medical expenses on behalf of the insured has already been litigated,
the MAO’s independent right of reimbursement from the liability insurer is
untouched by that prior litigation. If the liability insurer defends on the basis of
the common law rule against splitting a cause of action, it will still lose. Although
the same series of events that gave rise to the MAO’s reimbursement claim was
already litigated and the insured’s tort claim included the MAO’s outlay (meaning
that a separate suit brought by the insured would normally constitute a split cause
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of action), there is no split cause of action because the MAO’s reimbursement
right is no longer derivative of the insured’s right to recover in tort. Hence, the
causes of action are separate.
To recapitulate, the results of the insured’s judgment against the tortfeasor
are as follows. First, the insured gets to keep the portion of the judgment
representing the MAO’s outlay. Second, and as a result of the first, the liability
insurer must pay double. What it paid to the insured is irrelevant with respect to
what it owes the MAO. Third, state laws precluding the MAO’s suit on the basis
of res judicata are effectively nullified. Finally, state laws prohibiting the splitting
of causes of action are similarly nullified. This is this Court’s new litigation
model.
5. How the Court’s Decision Will Impact Litigant Conduct
These upheavals of state law will change many behaviors. To begin, a
liability insurer settles an insured’s case at its own peril. As a result of MAOs’
independent reimbursement right, to avoid double payment of an MAO’s outlay,
the insurer must conduct a comprehensive investigation to ferret out the possibility
of an MAO’s involvement immediately upon receiving an insured’s demand for
compensation. Even if it does so and discovers nothing, it will be on the hook if an
MAO later comes calling. Further, in a case in which an MAO is involved, the
liability insurer simply will not settle unless the MAO and the insured agree on the
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amount that will go to the MAO upon payment and unless the settlement expressly
makes the MAO a payee of that amount.
If the parties do not reach a compromise and the insured’s case goes to trial,
absent modification of state judgment rules, the liability insurer will likely end up
paying the MAO’s expenses twice if it loses the case. Because the MAO is not a
subrogee and enjoys an independent cause of action, the trial court would have no
basis under current state law to distribute any part of the insured’s recovery to the
MAO. The MAO would have no reason to submit to the trial court’s
“jurisdiction,” anyway. It can receive full reimbursement and double damages
from the liability insurer in a separate suit if the liability insurer refuses to pay it
after completion of the insured’s suit. So it would have no need to intervene;
indeed, the lucrative prospect of double damages incentivizes MAOs to remain
silent while their insureds proceed with litigation. Why would an MAO get
involved in its insured’s lawsuit and try to recover its outlays when it can wait the
litigation out and then seek double its outlays later?
The states in this Circuit will have to adopt new procedures to prevent
duplicate litigation of this sort. To prevent forcing liability insurers to make
double payments of MAOs’ outlays, state law must bar insureds from including
any sums expended by MAOs in their damages claims. If that rule does come into
existence, liability insurers must be able to invoke that bar at trial in order to
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protect themselves. Thus, during litigation, a liability insurer will have to
determine which of the insured’s claimed expenses might have been paid by an
MAO, which means additional discovery time and effort.
Alternatively, state law could require special verdicts that allow for
specification of MAOs’ expenses. In such a case, a liability insurer would pay the
MAO the amount of the special verdict as part of its satisfaction of the judgment.
If the MAO later tried to file a separate reimbursement suit, the liability insurer
could plead collateral estoppel. This remedy presumes, however, that an MAO
will be revealed during the course of litigation. And as the facts of the instant case
demonstrate, that is far from a foregone conclusion.
6. How the Court’s Decision Will Affect the Insurance Industry
Liability insurers will have to adapt quickly to this Court’s decision. Every
liability insurer in this Circuit will have to account for the fact that their policies
will necessarily include MAOs as unnamed beneficiaries. In fact, this coverage
might or might not spring into action in any case in which their policyholders
commit a tort, because an MAO could come knocking in any such case. And,
because there could be a mistake by any liability insurer as to what it owes an
MAO, all liability insurers must account for the possibility of double damages.
They must therefore build these additional risk factors into their actuarial
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calculations, meaning of course that the risk will ultimately be passed on to
consumers in the form of higher premiums.
* * *
This is a statutory interpretation case. Congress applied the MSP Act’s
secondary payment scheme to Medicare Advantage, which means that MAOs can
make secondary payments pursuant to that scheme, for which primary payers are
responsible. This Court’s task was to determine whether Congress provided a
means for MAOs to enforce primary payers’ responsibility. The Court’s first step
in deciding that question should have been to consider how MAOs’ recovery rights
under Medicare Advantage harmonize with the Government’s recovery rights
under the MSP Act’s provisions. See Antonin Scalia & Bryan A. Garner, Reading
Law 252 (2012) (“Any word or phrase that comes before a court for interpretation
is . . . part of an entire corpus juris. . . . Hence laws dealing with the same subject .
. . should if possible be interpreted harmoniously.”).
Had it done so, the Court would have realized that Congress intended to, and
did, protect MAOs acting as secondary payers by preserving their state-law
subrogation rights. Congress manifested this intent in 42 U.S.C. § 1395w-22(a)(4),
which protects MAOs’ right to include a subrogation clause in their contracts with
insureds. But the Court ignored this provision. It interpreted the Medicare
Advantage scheme as if § 1395w-22(a)(4) did not exist, as if MAOs would have no
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reimbursement rights without extension of the private right of action to protect
them. And so the Court construed MAOs’ rights as secondary payers under
Medicare Advantage to be the same as the Government’s rights as a secondary
payer under the traditional Medicare scheme.
So now we have two models. Under one model, the § 1395w-22(a)(4)
model, an MAO can recover its outlay by standing in the shoes of its insured and
suing a liability insurer as part of its insured’s tort action. If it follows this model,
the MAO is subject to a number of rules designed to ensure justice is done in the
case, including the rule barring recovery by the MAO unless and until the insured
has been made whole and the requirement that the court apportion the insured’s
recovery as the equities dictate. This model has worked for many years and in
many contexts; indeed, MAOs use this model all the time to recover their outlays
when they make secondary payments to insureds who don’t have Medicare
Advantage.
Under the other model, the model created by the Court’s interpretation of the
private right of action, 42 U.S.C. § 1395y(b)(3)(A), an MAO can recover its outlay
from the liability insurer directly. It may do so not on the basis of rights derivative
of the insured, but by its own rights and at its own option. And it may do so
notwithstanding the tortfeasor’s denial of liability and regardless of whether the
insurer has already paid the MAO’s outlays to the insured. And there are no
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equitable restrictions on this new model: the MAO need not submit to court
apportionment. Moreover, double recovery by the MAO’s insured is just fine. On
top of all that, if the liability insurer balks for any reason, the MAO may recover
double its outlays.
MAOs now have these two options for obtaining reimbursement. They are
free to choose either one. Is there any question as to which one they will pick? Of
course not. MAOs will always choose the option that avoids all of the rules that
could be disadvantageous to an MAO, imposes no new costs or limitations on the
MAO, and might provide double recovery. That model is the new one. So while
the old model, the state-law scheme that Congress protected in § 1395w-22(a)(4),
will stay on the statute books, it will be rendered inoperative in all practical
respects, because no MAO in its right mind will use it.
This Court has handed down an extraordinary decision. Is it possible that
Congress did not realize when creating Medicare Advantage that it did not need to
protect MAOs’ subrogation rights under state law, because it had, seventeen years
earlier, used its crystal ball to preemptively provide them with the same protections
as the Government when acting as a secondary payer? I find nothing in the MSP
Act’s plain text, its statutory context, or its underlying policy that suggests
Congress acted in such a Sibylline manner. Thus, I would revisit the Court’s
decision.
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III.
In conclusion, I agree with Judge Pryor that this case was wrongly decided.
I would therefore grant en banc review.
39