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Eleventh Circuit Court of Appeals rules that independent physician associations which have made conditional payments for a Medicare Advantage Organization can bring suit for double damages against the primary payer

On September 4, 2020, in MSP Recovery Claims, Series, LLC, et al. v. ACE American Insurance Company, et al, Nos. 18-12139, 18-12149, 18-13049, 18-13312. The Eleventh Circuit Court of Appeals vacated in part a district court ruling dismissing the cases of the plaintiff collection agencies in several cases (consolidated on appeal) in which they sought double damages against the defendant insurance companies for their failure to pay Medicare Secondary Payer Act claims. The SDFL district court had dismissed the claims after concluding that the assignment of claims to the collection agencies by Medicare Advantage Organizations (MAOs) were invalid and assignments by several other “downstream-actor assignors,” e.g., independent physician associations, fell outside the ambit of the Medicare Secondary Payer Act’s private right of action and thus could not confer statutory standing on the plaintiffs through an assignment. After reviewing 42 U.S.C. § 1395y(b)(3)(A), which establishes a private cause of action for double damages in case of nonpayment by a primary payor, the Eleventh Circuit concluded that downstream actors that have made conditional payments in an MAO’s stead or that have reimbursed an MAO for its conditional payment can bring suit for double damages against the primary payer.

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