Humana Medical Plan, Inc. vs. Mary Reale, et al.

Humana, the appellant in this case, administers Medicare benefits to enrollees

in its Medicare Advantage plans pursuant to a contract with the Centers for Medicare

and Medical Services. At all relevant times, Mary Reale, the appellee, was enrolled

in a Humana Medicare Advantage plan (Humana Gold Plus H1036-054C). In

January 2009, Mrs. Reale sustained injuries resulting from a fall at Hamptons West

Condominiums. Between the date of the fall and April 2009, Humana paid

conditional Medicare benefits for Mrs. Reale’s medical treatment. The parties have

stipulated that Humana expended $19,155.41.

Mrs. Reale and her husband, August Reale, filed a personal injury action

against the Hamptons West Condominiums, a home health aide who was accused of

causing the fall, and a resident of Hamptons West who employed the home health

aide. The parties settled the lawsuit in the amount of $135,000 for Mrs. Reale’s

economic and non-economic damages and Mr. Reale’s loss of consortium claim.

The Reales’ attorney, Donna Michelson, has set aside, in trust, sufficient funds for

the amount of benefits paid by Humana. In a letter dated March 11, 2010, Humana

presented Ms. Michelson with a payment report and informed her of its

determination that it was entitled to reimbursement of the full amount of conditional

Medicare benefits it provided. The Reales, through counsel, declined to reimburse

Humana in the amount requested and did not initiate an administrative appeal of

Humana’s determination. Ms. Michelson and the Reales have agreed that Ms.

Michelson may keep as additional attorney’s fees any portion of those funds she can

avoid having to reimburse to Humana. In May 2010, Humana brought an action against Mrs. Reale and Ms.

Michelson in the United States District Court for the Southern District of Florida

seeking reimbursement of the $19,155.41 pursuant to the Medicare Secondary Payer

Act, 42 U.S.C. § 1395y(b). Mrs. Reale moved to dismiss for lack of subject-matter

jurisdiction on the theory that the Medicare Act did not provide Humana with an

express or implied right of action for reimbursement. The court granted the motion.

Humana Med. Plan, Inc. v. Reale, 2011 WL 335341 (S.D. Fla. 2011), vacated (Sept.

26, 2011). Humana then filed a motion to amend or correct the order of dismissal,

which was partially granted. The court vacated its order and scheduled a hearing on

Humana’s motion. Humana subsequently dismissed the action for recovery against

Mrs. Reale and her attorney and instead brought a federal action for reimbursement

against Western Heritage Insurance Company, Hampton West’s liability insurer,

which funded the Reales’ settlement. On March 16, 2015, the United States District

Court entered an order granting Humana’s motion for summary judgment, finding

that Humana could maintain a private right of action for double damages against Western Heritage pursuant to 42 U.S.C. § 1395y(b)(3)(A).1 Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 94 F. Supp. 3d 1285 (S.D. Fla. 2015). Western Heritage has

appealed, and Humana’s reimbursement claim remains unsatisfied.

During the ongoing initial federal action for reimbursement that Humana

brought against Mrs. Reale and Ms. Michaelson, Mr. and Mrs. Reale brought this

action in the circuit court below for a declaration of Humana’s right to reimbursement, asserting that Humana’s payments constituted a collateral source of indemnity and that Florida’s collateral sources of indemnity statute, section 768.76,

Florida Statutes (2012), and not Medicare’s Secondary Payer Act, provided

1 42 U.S.C. § 1395y(b), the Medicare Secondary Payer Act, makes Medicare a secondary payer in relation to other sources, such as liability insurers, which are considered primary plans. If Medicare has made payments for services for which a primary plan is ultimately responsible, reimbursement is required. See infra pp. 911. 42 U.S.C. § 1395y(b)(3)(A) establishes a private cause of action for double damages when a primary plan does not provide reimbursement.

Humana’s right of recovery. Humana moved to dismiss for lack of subject-matter

jurisdiction and failure to state a cause of action based on three separate grounds: 1. Mrs. Reale did not exhaust the mandatory administrative appeal process for disputing Medicare benefits, and even if she had, jurisdiction would lie

exclusively in the federal courts. 2. Federal law preempts Florida’s collateral sources of indemnity statute. 3. By its terms, the collateral sources statute does not apply to claims for Medicare benefits. After temporarily staying the lower court proceedings to allow resolution of

the initial federal action, the circuit court denied Humana’s motion to dismiss.

Humana then filed a motion for summary judgment based on the same three grounds,

which was also denied. To expedite the process, the parties stipulated to the relevant

facts, and the Reales filed a motion for final judgment. On October 30, 2012, the

circuit court entered final summary judgment, finding that it had subject-matter

jurisdiction pursuant to section 86.011, Florida Statutes, and Care Choices HMO v.

Engstrom, 330 F.3d 786 (6th Cir. 2003). The court also found that Florida

subrogation law, including the collateral sources statute, was applicable in

determining Humana’s right to reimbursement. Pursuant to the formula in section

768.76(4), Florida Statutes, for calculating the amount of recovery for “[a] provider

of collateral sources that has a right of subrogation or reimbursement[,]” the court

calculated Humana’s total reimbursement to be $3,685.03.2 Humana timely

appealed.

THE MEDICARE FRAMEWORK Because of the complex nature of the Medicare Act, we begin by providing a

brief overview of the Medicare framework and the provisions at issue in this case.

Title 42, chapter 7, Subchapter XVIII of the United States Code (also designated

Title XVIII of the Social Security Act) is entitled “Health Insurance for Aged and

Disabled.” Popularly referred to as “the Medicare Act,” it has been described as

“one of the most completely impenetrable texts within the human experience.” E.g.,

Parra v. PacifiCare of Arizona, Inc., 715 F.3d 1146, 1149 (9th Cir. 2013) (quoting

Cooper Univ. Hosp. v. Sebelius, 636 F.3d 44, 45 (3d Cir.2010)). Medicare benefits

are divided into four parts: Part A, “Hospital Insurance Benefits for Aged and

Disabled” (42 U.S.C. §§ 1395c to 1395i-5); Part B, “Supplementary Medical

Insurance Benefits for Aged and Disabled” (42 U.S.C. §§ 1395j to 1395w-5); Part C, “[Medicare Advantage] 3 Program” (42 U.S.C. §§ 1395w-21 to 1395w-28); and

The circuit court found that Mrs. Reale’s $135,000 settlement was 33.75% of the full value of her claims; therefore, the court took 33.75% of the total benefits paid by Humana ($19,155.41), which amounts to $6,464.95. The court further reduced that amount by 43% for fees and costs incurred in securing the settlement, bringing the total reimbursement amount to $3,685.03. 3 The current Part C Medicare Advantage program was formerly known as “Medicare+Choice,” and many Part C provisions still use that terminology. When Congress made revisions to the program and changed the name in 2003, it provided that “any reference to the program under part C of title XVIII of the Social Security

Part D, “Voluntary Prescription Drug Benefit Program” (42 U.S.C. §§ 1395w-101

to 1395w-154). There is also a Part E for “Miscellaneous Provisions” (42 U.S.C. §§

1395x to 1395lll). PART C: THE MEDICARE ADVANTAGE PROGRAM This case involves benefits received under Part C. The Medicare Act allows

eligible individuals to obtain hospital and medical benefits through one of two

programs: “(A) through the original medicare fee-for-service program under parts A and B . . . or (B) through enrollment in a [Medicare Advantage] plan under [part C].” 42 U.S.C. § 1395w-21(a); see also In re Avandia Mktg., Sales Practices & Prods.

Liab. Litig. 685 F.3d 353, 357 (3d Cir. 2012). “Congress's goal in creating the

Medicare Advantage program was to harness the power of private sector competition

to stimulate experimentation and innovation that would ultimately create a more

efficient and less expensive Medicare system.” In re Avandia Mktg., 685 F.3d at

363 (citing H.R. Rep. No. 105–217, at 585 (1997), 1997 U.S.C.C.A.N. 176, 205–06

(Conf. Rep.)); see also Parra, 715 F.3d at 1152-53 (“Part C is intended to ‘allow

beneficiaries to have access to a wide array of private health plan choices in addition

to traditional fee-for-service Medicare . . . [and] enable the Medicare program to

Act shall be deemed a reference to the Medicare Advantage program and, with respect to such part, any reference to ‘Medicare+Choice’ is deemed a reference to ‘Medicare Advantage’ and ‘MA’.” Medicare Prescription Drug, Improvement, and Modernization Act of 2003, PL 108–173, December 8, 2003, 117 Stat 2066.

utilize innovations that have helped the private market contain costs and expand

health care delivery options.’” (quoting H.R. Rep. No. 105–149, at 1251 (1997))).

The Centers for Medicare & Medicaid Services (“CMS”) administers the Medicare program on behalf of the Secretary of Health and Human Services.4 Part

C allows eligible individuals to obtain benefits through Medicare Advantage plans,

which are administered by private insurers known as Medicare Advantage organizations (“MAOs”) that enter into contracts with CMS.5 42 C.F.R. § 422.503

(“In order to qualify as an MA organization, enroll beneficiaries in any MA plans it

offers, and be paid on behalf of Medicare beneficiaries enrolled in those plans, an

MA organization must enter into a contract with CMS.”). CMS pays MAOs a fixed

amount for each enrollee, which is determined pursuant to 42 U.S.C. § 1395w-23.

In exchange, the MAOs provide the same (or more) benefits an enrollee would

receive under the original Medicare fee-for-service program (Parts A and B). See

Compare 42 U.S.C § 1395kk(a) (“[T]he insurance programs established by this subchapter shall be administered by the Secretary. The Secretary may perform any of his functions under this subchapter directly, or by contract[.]”) with Health Care Financing Administration; Statement of Organization, Functions, and Delegations of Authority, 46 FR 56911-03 (1981) (“The mission of the Health Care Financing Administration (HCFA) is to administer the Medicare and Medicaid programs and related provisions of the Social Security Act[.]”) and 42 C.F.R. § 400.200 (2012) “(CMS stands for Centers for Medicare & Medicaid Services, formerly the Health Care Financing Administration (HCFA).”). 5 CMS also relies on private contractors to carry out many of its administrative functions for Parts A and B. 42 U.S.C. § 1395h(a) (“The administration of [Part A] shall be conducted through contracts with medicare administrative contractors under section 1395kk-1 of this title”); § 1395u(a) (same as to Part B).

42 U.S.C. § 1395w-22(a); 42 C.F.R. § 422.100(c) (“An MA plan includes at a

minimum basic benefits, and also may include mandatory and optional supplemental

benefits.”). THE MEDICARE SECONDARY PAYER ACT In 1980, Congress enacted the Medicare Secondary Payer (“MSP”) Act “in an effort to contain the costs of the Medicare program.” Potts v. Rawlings Co., LLC,

897 F. Supp. 2d 185, 188 (S.D.N.Y. 2012). The MSP Act, 42 U.S.C. § 1395y(b),6

makes Medicare a “secondary payer” in relation to certain other sources, which are

considered “primary payers.” Id. Under the Act, Medicare payments “may not be

made” if “payment has been made or can reasonably be expected to be made under

a workmen’s compensation law or plan of the United States or a State or under an

automobile or liability insurance policy or plan (including self-insured plan) or under

no fault insurance.” 42 U.S.C. § 1395y(b)(2)(A); see also Potts, 897 F. Supp. 2d at

188. However, conditional Medicare payments may be made if a primary payer “has

not made or cannot reasonably be expected to make payment . . . promptly.” 42

The MSP Act is found in the “miscellaneous provisions” of Part E. Recent court decisions have held that provisions in Part E that use the language “this subchapter,” apply to the entire Medicare Act (Subchapter XVIII), including Part C. See, e.g., In re Avandia Mktg., 685 F.3d at 359-60 (finding that the “payments under this subchapter” language in 42 U.S.C. § 1395y(b)(2)(A) makes the MSP private cause of action provision, § 1395y(b)(3)(A), applicable “to payments made under Part C as well as those made under Parts A and B.”).

U.S.C. § 1395y(b)(2)(B). When conditional payments are made, the MSP Act

requires reimbursement. Id.

In practice, this system works as follows: In a situation where another party is ultimately responsible for paying the healthcare costs of a Medicare enrollee, the money may not be available at the time the services are provided. For example, if an enrollee is injured in an accident caused by a third party tortfeasor, that tortfeasor (or its insurer) is ultimately responsible for the payment of the enrollee's healthcare costs as a result of the accident. But the enrollee will not likely receive the proceeds of any settlement with, or judgment against, the tortfeasor in time to pay her hospital bills. In such a situation, Medicare will pay the hospital bills on the condition that either the tortfeasor reimburse the Medicare Trust Fund directly, or the enrollee reimburse the Trust Fund, to the extent she has already received monies from the tortfeasor. Potts, 897 F. Supp. 2d at 188.

Part C includes a similar provision that “cross-references § 1395y(b)(2) for its

definitions of primary payer and its positioning of Medicare as a secondary payer.”

In re Avandia Mktg., 685 F.3d at 358. The Part C provision states:

Notwithstanding any other provision of law, [an MAO] may (in the case of the provision of items and services to an individual under [an MA] plan under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2) of this title) charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section--

(A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or

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(B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services.

42 U.S.C. § 1395w-22(a)(4).

ANALYSIS Because the parties stipulated to the relevant facts, the circuit court’s ruling

was based on pure issues of law. We review pure issues of law de novo. Rittman v.

Allstate Ins. Co., 727 So. 2d 391, 393 (Fla. 1st DCA 1999). Whether a court has

subject-matter jurisdiction involves a question of law and is also reviewed de novo.

Nissen v. Cortez Moreno, 10 So. 3d 1110, 1111 (Fla. 3d DCA 2009). I. SUBJECT-MATTER JURISDICTION Humana argues that the circuit court lacked subject-matter jurisdiction

because the Reales failed to exhaust mandatory administrative remedies and, even if

exhaustion had occurred, the Reales’ claim is subject to exclusive federal

jurisdiction. We agree.

Certain provisions of the Social Security Act are made applicable to the

Medicare Act through 42 U.S.C. § 1395ii.7 One of those provisions is 42 U.S.C. § 405(h), which states, in relevant part:

7 42 U.S.C. § 1395ii is found in Part E of the Medicare Act and, by its language, applies to the entire Medicare Act (subchapter XVIII), including Part C. Cf. supra note 6.

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No findings of fact or decision of the [Secretary of Health and Human Services]8 shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the [Secretary], or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.9 (emphasis added). In Heckler v. Ringer, 466 U.S. 602, 614 (1984), the Supreme

Court of the United States explained that 42 U.S.C. § 405(h) makes 42 U.S.C. §

405(g), the Social Security program’s judicial review provision, “the sole avenue for judicial review of all claims arising under the Medicare Act.” (internal quotation marks omitted). See also, e.g., Potts, 897 F. Supp. 2d at 191 (“Under 42 U.S.C. §

405(h), which is made applicable to the Medicare Act by 42 U.S.C. § 1395ii, ‘[n]o

findings of fact or decision of the [Secretary] shall be reviewed by any person,

tribunal, or governmental agency except as herein provided [in § 405(g).] . . . .’”

(alterations in original)). In addition, Part C includes a provision that expressly

8 In applying provisions of the Social Security Act to the Medicare Act, “any reference . . . to the Commissioner of Social Security or the Social Security Administration shall be considered a reference to the Secretary or the Department of Health and Human Services, respectively.” 42 U.S.C. § 1395ii. 9 Revoking federal jurisdiction under 28 U.S.C. §§ 1331 (federal-question jurisdiction) and 1346 (federal tort claims) “is intended to prevent circumvention of the administrative process provided for the adjudication of disputes between Medicare beneficiaries and the government (or agents of the government . . .).” United States v. Blue Cross & Blue Shield of Alabama, Inc., 156 F.3d 1098, 1103 (11th Cir. 1998).

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incorporates § 405(g) into the Medicare Advantage context. See 42 U.S.C. § 1395w

22(g)(5).

Section 405(g), in turn, limits jurisdiction of claims arising under the

Medicare Act to the federal courts but only after exhaustion of administrative

remedies:

Any individual, after any final decision of the [Secretary of Health and Human Services] made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . . Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.

(emphasis added). Therefore, 42 U.S.C. §§ 405(h) and 405(g), when read together, create an exclusive review process for all claims arising under the Medicare Act, including claims brought in the context of the Medicare Advantage program.

In Potts, a Medicare Advantage case similar to the one before us, the United

States District Court for the Southern District of New York explained that “[t]he

Supreme Court has interpreted the ‘claim arising under’ language in § 405(h) ‘quite

broadly.’” 897 F. Supp. 2d at 192 (quoting Heckler, 466 U.S. at 615). The Potts court further explained that “[a] claim ‘arises under’ the Medicare Act (1) if ‘both

the standing and substantive basis’ for the claim is the Medicare Act, or (2) if the

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claim is ‘inextricably intertwined’ with a claim for benefits under the Medicare Act.”

Id.

CMS requires MAOs to provide “[a] general description of procedural rights

(including grievance and appeals procedures)” to Medicare Advantage plan

enrollees. 42 C.F.R. § 422.111(f)(3). As required, Humana mailed Mrs. Reale an

Evidence of Coverage (EOC) every year outlining her rights and responsibilities.

Humana’s 2009 and 2010 EOCs both describe, in detail, the plan’s appeals process,

including an enrollee’s right to appeal to a federal district court after completing the

administrative review process. The EOCs also outline the coordination of benefits

under Medicare’s Secondary Payer rules. Both EOCs clearly state that if Humana

makes a payment to an enrollee for covered services, Humana is “entitled to be fully

subrogated to any and all rights you have against any person, entity, or insurer that

may be responsible for payment of medical expenses and/or benefits related to your

injury, illness, or condition.”

The Reales do not dispute that this mandatory review process applies to all

claims arising under the Medicare Act,10 nor do the Reales claim that they exhausted

10 The dissent, however, suggests 42 U.S.C. § 405(g) does not apply to MAOs because Heckler “antedated the establishment of MAOs by many years.” Dissent at 11. We do not rely on Heckler for the proposition that the process set forth in § 405(g) is applicable to MAOs. As we, and many courts before us, have explained, § 405(g) is made applicable to the Medicare Advantage program by the Medicare Act itself (through 42 U.S.C. § 1395ii and 42 U.S.C. § 1395w-22(g)(5)). See also 42 C.F.R. § 422.562(b)(4) (MA enrollee appeal rights).

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their reimbursement dispute. Instead, they put forth several arguments why, in spite

of these clear statutory jurisdictional requirements, this Court has subject-matter

jurisdiction: 1. Humana does not have a federal cause of action against the Reales; therefore, this dispute does not arise under the Medicare Act. 2. Exhaustion is not required because this dispute over Humana’s reimbursement rights is at most a grievance. 3. Humana waived the exhaustion requirement when it brought an action for recovery in federal court.

We find these arguments, which we treat in turn, unavailing. a. Arising under the Medicare Act The Reales’ principal argument is difficult to parse but appears to be that the

court below properly exercised jurisdiction because MAOs, such as Humana, are not

provided with a federal cause of action under 42 U.S.C. § 1395w-22(a)(4), and

therefore, the Reales’ action arises under state law rather than under the Medicare

Act. The Reales contend that because the language found in § 1395w-22(a)(4) is permissive,11 the provision authorizes, but does not compel, an MAO to charge an

11 “Notwithstanding any other provision of law, [an MAO] may . . . charge . . . (A) the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or (B) such individual to the extent that the individual has been paid under such law, plan, or policy for such services.” 42 U.S.C. § 1395w-22(a)(4) (emphasis added).

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entity or individual for payments when the MAO is a secondary payer. The circuit

court’s finding of subject-matter jurisdiction seems to be partially premised on this

argument as well.12

The Reales cite a handful of cases to support this assertion. See Parra v.

PacifiCare of Arizona, Inc., 715 F.3d 1146, 1146 (9th Cir. 2013) (finding that an

MAO did not have a federal private cause of action for reimbursement under §

1395mm(e)(4);13 therefore, the MAO’s reimbursement claim arose by virtue of its

contract with plan participants); Engstrom, 330 F.3d 786 (6th Cir. 2003) (finding

that a Medicare HMO, a precursor to Part C, did not have a federal right of action

under 42 U.S.C. § 1395mm(e)(4)); Konig v. Yeshiva Imrei Chaim Viznitz of Boro

Park Inc., 12-CV-467, 2012 WL 1078633 (E.D.N.Y. 2012) (remanding an MAO’s

federal action for reimbursement to state court because the MAO did not have a

federal cause of action under the Medicare Act); Ferlazzo v. 18th Ave. Hardware,

Inc., 929 N.Y.S.2d 690 (Sup. Ct. 2011) (finding that an MAO did not have a federal

right of action under 42 U.S.C. §§ 1395mm(e)(4) and 1395w-22(a)(4)); Nott v.

12 The circuit court’s finding of jurisdiction was based on section 86.011, Florida Statutes, and Care Choices HMO v. Engstrom, 330 F.3d 786 (6th Cir. 2003). 13 See D. Gary Reed, Esq., Medicare Advantage Misconceptions Abound, Health Law., October 2014, at 1, 3 (“42 U.S.C. § 1395mm governed the Medicare HMO option that was the precursor to Medicare Part C. Not understanding this, several decisions cite that provision when discussing the Medicare Part C option, instead of or along with the correct Part C provision.”).

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Aetna U.S. Healthcare, Inc., 303 F. Supp. 2d 565 (E.D. Pa. 2004) (finding that a

Medicare+Choice organization did not have a federal right of action under 42 U.S.C.

§§ 1395mm(e)(4) and 1395w-22(a)(4)).

Conspicuously absent from these cases, however, is any analysis whatsoever

of the review process set forth in 42 U.S.C. § 405(g). Indeed, none of these cases

even so much as mentions § 405(g)’s mandatory exhaustion and exclusive federal

jurisdiction requirements, and the Reales are unable to point us to a single case in

which these requirements were actually considered and found to be inapplicable in

a dispute—such as the one before us now—involving an MAO’s right to

reimbursement. Contrary to what the Reales would have us believe, courts have consistently

and overwhelmingly held that disputes concerning reimbursement of conditional

payments are claims for benefits that “arise under the Medicare Act” and must be

exhausted through the administrative appeals process before an enrollee invokes

judicial review in a federal court. See, e.g., Collins v. Wellcare Healthcare Plans,

Inc., 2014 WL 7239426 (E.D. La. 2014) (holding that a Medicare Advantage

enrollee’s state court action seeking a declaration that an MAO was not entitled to

reimbursement was a claim arising under the Medicare Act that must be exhausted

before any judicial review); Einhorn v. CarePlus Health Plans, Inc., 43 F. Supp. 3d

1329 (S.D. Fla. 2014) (holding that a Medicare Advantage enrollee’s Florida

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Consumer Practices Act claim against an MAO for demanding reimbursement

greater than what was due was a claim arising under the Medicare Act that must be

brought through the administrative appeals process before it could be taken to federal

court); Cupp v. Johns, 2:14-CV-02016, 2014 WL 916489 (W.D. Ark. 2014) (holding

that a Medicare Advantage enrollee’s Arkansas subrogation law action seeking a

declaration that an MAO did not have a right to reimbursement arose under the

Medicare Act, and the appropriate remedy was to go through the administrative

review and appeals process required by the Medicare Act); Potts, 897 F. Supp. 2d

185 (holding that Medicare Advantage enrollees’ action seeking declaratory

judgment regarding MAO reimbursement rights pursuant to a New York anti

subrogation statute arose under the Medicare Act and was subject to the

requirements of § 405(g)); Phillips, 953 F. Supp. 2d at 1081 (holding that a Medicare

Advantage enrollee’s California consumer protection claim against an MAO seeking

reimbursement was a disguised claim for benefits and arose under the Medicare

Act).

Given the extensive case law, we have no difficulty concluding that the

Reales’ declaratory action to determine Humana’s right to reimbursement is a claim

that must proceed exclusively pursuant to § 405(g). The law in both the traditional

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Medicare14 and Medicare Advantage context is settled: “[c]laims concerning

reimbursement of secondary payments are ‘inextricably intertwined’ with claims for

benefits” and therefore such reimbursement claims arise under the Medicare Act.

See, e.g., Einhorn, 43 F. Supp. 3d at 1332 (quoting Potts, 897 F. Supp. 2d at 192).

Because the Reales did not obtain a final decision from the Secretary, as required by

§ 405(g), their dispute is not subject to judicial review. Further, if their dispute were

subject to judicial review, jurisdiction would lie exclusively in the federal courts. b. Organization Determinations and Grievances The Reales next argue, based upon Giesse v. Secretary of the Department of

Health & Human Services, 522 F.3d 697 (6th Cir. 2008), that what they denominate

as the “binary nature of the administrative review process which distinguishes

between ‘[organization determinations]15’ and ‘grievances’” operates to exempt

them from the strictures of the § 405(g) review process. According to the Reales,

this dispute over Humana’s reimbursement rights does not fit anywhere within the

14 An even larger body of case law in the traditional Medicare context holds that § 405(g) is the sole avenue for judicial review of Medicare reimbursement disputes. See, e.g., Wilson ex rel. Estate of Wilson v. United States, 405 F.3d 1002 (Fed. Cir. 2005); Maresh v. Thompson, 114 Fed. App’x. 152 (5th Cir. 2004) (per curiam); Fanning v. United States, 346 F.3d 386 (3d Cir. 2003); Buckner v. Heckler, 804 F.2d 258 (4th Cir. 1986). 15 The Reales—apparently adverting to Giesse—incorrectly use the outdated term “agency determinations,” which appears in an older version of 42 C.F.R. § 422.566(b), in the place of “organization determinations.”

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definition of an organization determination contained in 42 C.F.R. § 422.566(b), so

the dispute must instead be a grievance.16 Since the review process for a grievance

is more limited than that of an organization determination, the Reales claim this

somehow exempts their dispute from the administrative review process completely

and allows them to adjudicate their “grievance” in state court under state law. The

Reales cite no authorities to support this proposition.

The Reales misapprehend the “organization determination” and “grievance”

distinction explained in Giesse and the relevant regulations. Humana’s

reimbursement determination is an organization determination under 42 C.F.R §

422.566(b)(3) because it is a “refusal to . . . pay for services” where there is a primary

payer. Cf. 42 C.F.R. § 422.564 (grievance procedures). However, even assuming

for the sake of argument that this dispute is a grievance, this Court would not have

subject-matter jurisdiction because, as explained above, this claim unequivocally

arises under the Medicare Act and must proceed through the review process outlined

16 Relatedly, the Reales and the dissent both argue that Humana never actually issued an organization determination because the letter Humana sent to the Reales did not meet the requirements set forth in the regulations. While there may be some merit to this argument, it does not convert the Reales’ action to determine Humana’s reimbursement rights into a state court claim. The Reales’ reimbursement dispute remains a claim arising under the Medicare Act. Moreover, if an MAO fails to provide an enrollee with a timely organization determination in compliance with the relevant regulations, “this failure itself constitutes an adverse organization determination and may be appealed.” 42 C.F.R. § 422.568(f). The EOCs also explain that if an organization determination is not timely received, the enrollee has the right to appeal.

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in 42 U.S.C. §§ 405(g) and 405(h). As Giesse itself explains, “[s]ection 405(h)

‘channels most, if not all, Medicare claims through this special review system.’” 522

F.3d at 702 (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000)). This is true of both organization determinations and grievances. The difference explained by the court in Giesse between an organization determination and a grievance is the extent of the appeals process. An organization determination is subject to judicial review once an enrollee receives a final decision

from the Secretary after exhausting all administrative appeals. Id. at 704. “Grievances, unlike organization determinations, do not have additional levels of

review beyond the [MAO]. As there are no additional levels of review beyond the

[MAO], there is no ‘final decision’ by the secretary that allows for judicial review”

Id. (citations omitted). In other words, there is no judicial review of an MAO’s

grievance determination. This in no way suggests that judicial review of a grievance

is available in state court under state law for a claim arising under the Medicare Act. c. Waiver In a final effort to invoke the subject-matter jurisdiction of this Court over the claim made by them in this case, the Reales argue that Humana waived “its right” to

require the claim to proceed through the Medicare appeals process by bringing an

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action for recovery against Mrs. Reale in federal court.17 This argument is also

unavailing. As we have already explained, “[j]udicial review of claims arising under

the Medicare Act is available only after the Secretary renders a ‘final decision’ on

the claim, in the same manner as provided in 42 U.S.C. § 405(g)” Potts, 897 F.

Supp. 2d at 191 (quoting Heckler, 466 U.S. at 605). The Reales, relying on the

United States Supreme Court case Heckler, correctly state the two elements required

for a final decision: “(1) a non-waivable requirement of presentation of any claim to

the Secretary and (2) a requirement of exhaustion of administrative review, which

the Secretary may waive.” See also Potts, 897 F. Supp. at 192. The Reales then

incorrectly assert, without citation to authority, that Humana is placed in the position

of the Secretary and therefore (1) the Reales satisfied the non-waivable presentation

requirement by presenting their claim to Humana and (2) Humana waived the

exhaustion requirement by filing an action in federal court.

17 The dissent similarly argues that Humana engaged in conduct that cleared the way for the court below to determine its reimbursement rights. Dissent at 13-14. This argument seems to be premised on a law review article’s claim that MAOs are responsible for their own debt collections. Id. at 11-13 (quoting Jennifer Jordan, Is Medicare Advantage Entitled to Bring a Private Cause of Action Under the Medicare Secondary Payer Act?, 41 Wm. Mitchell L. Rev. 1408, 1414-16, 1439-40 (2015)). How this premise leads to the conclusion that a state court has jurisdiction over a Medicare reimbursement dispute is unclear, especially in light of the law review article’s explanation that under both Medicare and Medicare Advantage “[s]hould any beneficiary disagree with a benefit determination, he must exhaust the administrative remedies provided.” Jordan, supra, at 1413.

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The Reales’ assumption that Humana replaces the Secretary in the appeals

process finds no support in any of the Medicare Part C statutes or regulations, nor is

it supported by the detailed explanation of the process set forth in Humana’s EOC.

It defies logic to substitute Humana in the place of the Secretary as the arbiter of a

dispute between Humana and its enrollee. To obtain federal judicial review, the

Reales must present their claim to the Secretary, not to Humana, to render a final decision. See 42 U.S.C. § 1395w-22(g)(5).18 II. THE STATE LAW SUBROGATION CLAIM The Reales argue that their action for a declaration of Humana’s reimbursement rights is governed by Florida subrogation law, including Florida’s

collateral sources of indemnity statute, section 768.76, Florida Statutes (2012). The

circuit court agreed. Because the clear language of the statute excludes benefits

received under the Medicare Act, we find that the statute is inapplicable on its face.

In addition, Florida subrogation law is expressly preempted by Part C’s broad and

unambiguous preemption provision, 42 U.S.C. § 1395w-26(b)(3). As the Reales’

action cannot be brought under state law, “[t]his reinforces the Court’s conclusion

18 Although Humana does not take the place of the Secretary and may not waive the exhaustion requirement, its conduct has not necessarily been aboveboard. See supra note 16. At oral argument, counsel for Humana stated that if this Court finds there is a lack of subject-matter jurisdiction, Humana will reissue another determination letter, which will restart the time period for pursuing the administrative appeals process.

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that [the Reales’] claims concerning [Humana’s] reimbursement rights necessarily

arise under the Medicare Act.” See Potts, 897 F. Supp. 2d at 195. a. The Plain Language of Section 768.76 The court below found section 768.76, Florida Statutes (2012), applicable in determining Humana’s right to reimbursement. Section 768.76(4) provides a

formula for calculating the amount to be reimbursed when a collateral source

payment is made under a right of subrogation or reimbursement:

(4) A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider's right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney's fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider's pro rata share of those costs and attorney's fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney's fees.

(emphasis added). Relying on this formula, the court calculated Humana’s reimbursement amount to be $3,685.0319 instead of the full $19,155.41 Humana

requested in its written letter to the Reales’ counsel.

19 See supra note 2.

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The lower court’s finding flies in the face of the plain language of the statute,

which expressly excludes consideration of Medicare benefits as a collateral source

in two separate provisions:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant's behalf, by or pursuant to: 1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

§ 768.76(2)(a)(1), Fla. Stat., (emphasis added).

(b) Notwithstanding any other provision of this section, benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff's recovery, the Workers' Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source. § 768.76(2)(b), Fla. Stat., (emphasis added).

The Reales completely ignore section 768.76(2)(a)(1) and argue that section

768.76(2)(b) does not apply because Humana did not provide “Medicare conditional

benefits,” and “Humana is not Medicare.” These arguments cannot be harmonized

with the plain language of the statute. As explained above, Humana is a Medicare Advantage organization that provides Medicare benefits to enrollees in its Medicare

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Advantage plans. See 42 U.S.C. § 1395w-21(a). The benefits paid on behalf of the

Reales are indisputably “benefits received under Medicare[.]” The plain language

of § 768.76(2)(b) makes clear that such benefits “shall not be considered a collateral

source.” Further, Humana’s payments are expressly excluded under section 768.76(2)(a)(1) because they are payments made pursuant to Part C of Title XVIII of the Social Security Act. The circuit court erred in finding section 768.76

applicable to determine the extent of Humana’s reimbursement rights. b. Express Preemption The court below found that “Florida Subrogation Law, including the provisions of Florida Statute § 768.76, is applicable to determine the extent of

Defendant Humana’s right to reimbursement from the Reale settlement proceeds.”

To the extent that “Florida Subrogation Law” apart from section 768.76 may be

applicable to determine Humana’s right to reimbursement, it is preempted by the

broad, express preemption clause in Part C of the Medicare Act:

(3) Relation to State laws

The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part.

42 U.S.C. § 1395w-26(b)(3); see also 42 C.F.R. § 422.402; Potts, 897 F. Supp. 2d at

195 (finding New York anti-subrogation law preempted by 42 U.S.C. § 1395w

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26(b)(3)); cf. Smith v. Travelers Indem. Co., 763 F. Supp. 554 (M.D. Fla. 1989)

(finding that an older version of Florida’s collateral source statute, section 627.7372,

Florida Statutes (1987), was preempted by section 1395y(b)(1) of the Medicare Act).

When federal law contains an express preemption clause, our task is to “focus

on the plain wording of the clause, which necessarily contains the best evidence of

Congress’ preemptive intent.” Chamber of Commerce of U.S. v. Whiting, 131 S.

Ct. 1968, 1977 (2011) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658

(1993)). “[W]hen Congress has made its intent known through explicit statutory

language, the courts’ task is an easy one.” English v. Gen. Elec. Co., 496 U.S. 72

(U.S. 1990). This is the case here. Part C’s preemption provision is clear and

unambiguous: the standards established under Part C supersede any state law or

regulation, with very few exceptions, none of which apply here.

In Potts, the court explained that “[f]or the purposes of the preemption

provision, a standard is a statutory provision or a regulation promulgated under the

[Medicare Act] and published in the Code of Federal Regulations.” 897 F. Supp. 2d

at 195 (quoting New York City Health & Hosps. Corp. v. WellCare of New York,

Inc., 801 F. Supp. 2d 126, 140 (S.D.N.Y. 2011)). “Here, the federal statute contains

extensive provisions with respect to reimbursement rights of MA organizations in

the secondary payer context.” Id. at 196. In addition, the Part C regulations

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eliminate all doubt that the standards in Part C govern MAO reimbursement rights,

preempting any state law affecting such rights:

(f) MSP rules and State laws. Consistent with § 422.402 concerning the Federal preemption of State law, the rules established under this section supersede any State laws, regulations, contract requirements, or other standards that would otherwise apply to MA plans. A State cannot take away an MA organization's right under Federal law and the MSP regulations to bill, or to authorize providers and suppliers to bill, for services for which Medicare is not the primary payer. The MA organization will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations in subparts B through D of part 411 of this chapter.

42 C.F.R. § 422.108(f); see also Potts, 897 F. Supp. 2d at 195. Therefore, because

the explicit statutory language of Part C’s preemption provision preempts any state

law with respect to an MAO’s reimbursement rights, the circuit court erred in

determining the extent of Humana’s reimbursement pursuant to Florida subrogation

law.

For the foregoing reasons, we hold that the circuit court erred in its finding of subject-matter jurisdiction and its determination of Humana’s reimbursement rights pursuant to Florida subrogation law, including Florida’s collateral sources of indemnity statute. We vacate the judgment below and reverse and remand with instructions to dismiss the complaint for lack of jurisdiction.