Anew decision from United States federal court in Connecticut opens the door for Medicare Advantage organizations (MAOs) to use the Medicare Secondary Payer statutes private cause of action provision to sue insurers in federal court. The case, Aetna v. Guerrera, involved a lawsuit under the private cause of action against all parties involved in a personal injury settlement – plaintiff, attorneys, and defendant. This case is a bit of a split decision for Aetna, but it does add Connecticut to the list of states where litigants must now be aware of Medicare Advantage prior to settlement.

In this case, the court rendered a split decision on whether MAOs had the right to sue plaintiffs, attorneys and underlying tortfeasors. The court ultimately rejected the idea that the private cause of action provision granted MAOs the right to sue Medicare beneficiaries and their attorneys, on two points.  First, the court noted that: “the plain language of the Private Cause of Action provision, while admittedly vague, suggests that Congress intended suit against only primary plans” and not individual beneficiaries and their attorneys. Second, the court distinguished its ruling from prior MAO decisions in Louisiana and Virginia involving law firms and Medicare beneficiaries.  The court criticized the Louisiana ruling in Collins v. Wellcare and distinguished the decision reached Virginia decision in Humana v. Paris Blank. 

At the end of the day, Aetna v. Guerrera is another extension of Avandia rationale.  Claims payers can now add Connecticut to the list of states with rulings directly addressing the right of MAOs to sue under the MSP’s private cause of action provision.  The decision is noteworthy in its rejection of prior courts’ decisions to open up the private cause of action provision beyond primary payers.

For a more detailed summary of this issue, please read our White Paper  “Trouble in Medicare Advantage Paradise? Court victories reveal cracks in the foundation.”.