from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:17-cv-20039-KMW
WILSON, JILL PRYOR and THAPAR, [*] Circuit Judges.
THAPAR, Circuit Judge.
Medicare statute is almost "so incoherent [it] cannot be
understood." The Federalist No. 62, at 421 (James
Madison) (Jacob E. Cooke ed., 1961); see MSP Recovery,
LLC v. Allstate Ins. Co., 835 F.3d 1351, 1358 (11th Cir.
2016). Luckily though, we need not venture very far into its
tangled web here. The Medicare provision at issue in this
case is clear and clearly bars the plaintiff's claim.
Accordingly, we affirm.
we need not wade too deep into Medicare's web, a short
statutory background will still make the journey easier. This
case concerns two statutory schemes under the umbrella of
Medicare: the Medicare Secondary Payer Act ("MSP
Act") and the Medicare Advantage Program.
Medicare Secondary Payer Act. Sometimes more than one
insurer is liable for an individual's medical costs. For
example, a car accident victim may be entitled to recover
medical expenses from both her own health insurance and the
other driver's car insurance. Originally, whenever
Medicare had overlapping obligations with a private insurer,
Medicare paid first and let the private insurer pick up
whatever medical expenses remained. Medicare was the
"primary" payer and the private insurer was the
"secondary" payer. See Humana Med. Plan, Inc.
v. W. Heritage Ins. Co., 832 F.3d 1229, 1233-34 (11th
changed in 1980 with the MSP Act. Id. at 1234
(citing 42 U.S.C. § 1395y(b)). Enacted amid rising
Medicare costs, the MSP Act flipped the primary/secondary
order described above. The MSP Act made private insurers
"primary" payers (pay first) and Medicare the
"secondary" payer (pay only if a balance is
remaining). Id. But primary payers can sometimes
take a long time to pay (for instance, when a tort defendant
or her insurer is contesting liability). So the MSP Act
carved out an exception: when a responsible primary plan does
not "promptly meet its obligations," Medicare can
pay the entire amount upfront, so long as the primary plan
eventually reimburses Medicare for any amounts it overpaid.
Netro v. Greater Baltimore Med. Ctr., Inc., 891 F.3d
522, 524 (4th Cir. 2018) (citing 42 U.S.C. §
the reimbursement requirement some teeth, the MSP Act created
a cause of action that permits the government to sue when it
is not properly reimbursed. Id. But insured
individuals (and other private entities) are often in a
better position than the government to know about the
existence of responsible primary plans. Id. So the
MSP Act also created a second cause of action for private
plaintiffs. Successful private plaintiffs receive double
damages, and while they must give Medicare its share of the
recovery, they can keep whatever is left over. See Glover
v. Liggett Grp., Inc., 459 F.3d 1304, 1307 (11th Cir.
2006) (citing 42 U.S.C. § 1395y(b)(3)(A) (double
damages); id. § 1395y(b)(2)(B)(iv)
(Medicare's subrogation rights)). This scheme
"'encourage[s] private parties who are aware of
non-payment by primary plans to bring actions to enforce
Medicare's rights.'" Humana Med., 832
F.3d at 1235 (quoting Glover, 459 F.3d at 1307). In
the car accident example, say that Medicare pays for the
accident victim's medical expenses, but the other
driver's car insurance, despite having an obligation to
pay, does not. In that case, the car insurance company is a
primary plan that has failed to fulfill its obligations. So
the accident victim may sue it under the MSP Act and, if
successful, recover on her own behalf.
two decades after introducing the MSP Act, Congress enacted
the Medicare Advantage Program (also known as Medicare Part
C). 42 U.S.C. § 1395w-21 et seq. This statute
aims to reduce Medicare costs through semi-privatization; it
permits Medicare to effectively subcontract its duties to
private insurers, operating as Medicare Advantage
Organizations (commonly called "MAOs"). Parra
v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1152-53
(9th Cir. 2013). Under these contracts, Medicare pays the MAO
a fixed fee per enrollee, and, in exchange, the MAO must
provide at least the same benefits to the enrollee that she
would receive under traditional Medicare. Tenet
Healthsystem GB, Inc. v. Care Improvement Plus S. Cent. Ins.
Co., 875 F.3d 584, 586 (11th Cir. 2017).
MAOs stand in the shoes of Medicare, Congress implemented a
similar primary/secondary payment structure to govern
situations when MAOs have overlapping obligations with other
insurers. MAOs, like Medicare, are "secondary"
payers, stepping in once the primary payer has fulfilled its
obligation. MAOs, like Medicare, can make payments in excess
of their secondary obligations, conditioned on later
receiving reimbursement from the primary payer. Humana
Med., 832 F.3d at 1235 (citing 42 U.S.C. §
1395w-22(a)(4)). And finally, MAOs, like Medicare, can sue
primary plans to ensure they are properly reimbursed.
Id. at 1238. But unlike Medicare, MAOs must
rely on the private cause of action when they sue. They
cannot use the separate government cause of action. See
id. at 1236-38; 42 U.S.C. § 1395y(b)(2)(B)(iii)
("[T]he United States may bring an action
against any or all entities that are or were required or
responsible . . . to make payment . . . under a primary plan.
. . . In addition, the United States may recover . .
. from any entity that has received payment from a primary
plan or from the proceeds of a primary plan's payment to
any entity." (emphasis added)).
Healthcare Plus, Inc. ("FHCP") is an MAO. In 2013,
one of FHCP's enrollees got into a car accident and
received treatment at St. Mary's Medical Center,
Inc.'s ("St. Mary's") hospital. Two plans
covered her treatment. Allstate, as her private insurance
company, was the "primary" payer. And FHCP also
covered her treatment as the "secondary" payer.
But, instead of billing Allstate first, St. Mary's billed
both Allstate and FHCP for the same medical treatment. And
they both paid. Several months later, without ...