If this blog is beginning to sound a bit like a broken record regarding the recurrence of important health care decisions, that may not be a surprise. On Friday, the Sixth Circuit handed down a significant decision regarding the Medicare Secondary Payer Act, Bio-Medical Applications of Tennessee, Inc. v. Central State’s Southeast and Southwest Areas Health and Welfare Fund (Case Nos. 09-6121/6169). The Court essentially addressed three separate questions: (1) Whether a group health plan can immediately deny coverage to one of its insured simply because that person became eligible for Medicare after being diagnosed with an end-stage renal disease. The Court answered that question in the negative. (2) When a group health plan violates the Act, what is the remedy for injured health care providers? In response to this question, the Court held that a health care provider need not previously demonstrate a private insurer’s responsibility to pay before bringing a lawsuit under the Act’s private cause of action. (3) What is the proper amount of damages under the Act’s private cause of action? On this question, the Court elected to remand for further record development and briefing.
At numerous points in the Court’s lengthy opinion on this subject, the Court expressed some frustration with the overall structure of the Medicare Secondary Payer Act, referencing the “tortuous” text of the statute, a point echoed by Judge White’s concurrence, in which she referenced to it as a “difficult statute.” For those who have an occasion to deal with the Medicare Secondary Payer Act, this opinion merits a close read. In particular, on the second question, the Court acknowledged widespread confusion amongst the federal courts on this matter and elected to part company with a substantial amount of this authority. It analyzed an Eleventh Circuit decision at length, and while not expressly creating a circuit split, the Court did disagree with some of the Eleventh Circuit’s reasoning. It appears that the Act’s somewhat convoluted structure has been the impetus behind the divergent opinions of the federal courts. The damages question may also receive further attention if this case is re-appealed after the remand.