Last month, the U.S. District Court for the Eastern District of Pennsylvania joined a growing number of federal courts in rejecting a Medicare Advantage (MA) plan's assertion of a federal private right of action against casualty insurers under the Medicare Secondary Payer (MSP) laws. [Humana v. GlaxoSmithKline, No. 10-6733, 2011 WL 2413488 (E.D. Pa. June 13, 2011.)]
The opinion in this case is significant for casualty insurers in several respects. First, the Court's ruling may be the tipping point that compels the Centers for Medicare & Medicaid Services (CMS) to seek Congressional amendment of a collection of complex, disjointed MSP provisions that require "non-group health plans" (NGHPs)—including liability, no-fault, and workers' compensation insurers—to pay primary to Medicare when compensating Medicare beneficiaries for bodily injuries and related medical expenses.
Second, the decision raises the question whether CMS may require NGHPs to report to CMS their claims payments to MA plan beneficiaries or risk a penalty of $1,000 a day under Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (Section 111).
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