Medicare (MSP) Program, Zinman Revisited | San Diego Injury Law Firm

MSP statute: 42 U.S.C. § 1395y(b)(2) & the Zinman Court

Congress enacted Medicare in 1965, “a federally funded program of health insurance for the aged, disabled and persons suffering from end-stage renal disease.” (Ds’ MSJ at 4.) The Secretary of the Department of Health and Human Services is charged with broad authority to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter.” Id. (citing 42 U.S.C. § 1395hh(a)(1)). She acts through the Administrator of the CMS program.

In 1980, Congress enacted the MSP provisions at issue in this case in an effort to “stem the skyrocketing costs of the Medicare program.” Id. (citation omitted). The MSP provisions “– require liability and no-fault insurance to be the primary payers for services rendered to Medicare beneficiaries, leaving the Medicare program to provide benefits only as a ‘secondary’ payer.” Id. (citation omitted). Two mechanisms protect Medicare funds and ensure that Medicare is the secondary payer.

The first clause applies to actions against primary plans and the second clause applies to actions against “any entity that has received payment, directly or indirectly, from a primary plan. The Secretary interpreted the statute broadly to define an “entity” to include: “a supplier, beneficiary, attorney, State agency, or private insurer.” 42 C.F.R. § 411.24(g). The court in Zinman did not consider whether statutory provisions applicable to a primary plan apply equally to claims against beneficiaries. Zinman does not answer the question posed by the Plaintiffs, as to whether the 60-day payment requirement, with interest otherwise accruing, applies to..............Currently, the statute reads: “. . . the United States may: 1) bring an action against any or all entities that are or were required or responsible (directly, as an insurer . . . ) to make payment with respect to [a Medicare] item or service . . . under a primary plan . . . [and] may, in accordance with paragraph (3)(A) collect double damages against any such entity)” and 2) “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.” 42 U.S.C. § 1395y(b)(2)(B)(iii) (2010).

The court found that allowing the government to recover the full amount of its conditional payments, regardless of a victim’s allegations as to type of damages, avoids the commitment of federal resources to the task of ascertaining the dollar amount of each element of a victims beneficiaries, when there is a disputed reimbursement claim. The Court turns to Chevron for the answer.

Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights. It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

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