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June 11, 2021

AHIP Files Amicus Brief in Medicare Secondary Payer Case

Insurance industry group, America’s Health Insurance Plans (AHIP), filed an amicus brief in with the Second Circuit in support of Aetna in seeking the court’s affirmance of a district court ruling that Aetna had a right to bring a private cause of action to enforce the Medicare as a Secondary Payor requirements. AHIP argues that Medicare Advantage Organizations (“MAO”) have a statutory mechanism for obtaining appropriate reimbursement. The district court held this statutory mechanism is the Medicare Secondary Payer Act’s private cause of action, which applies when a primary payer refuses to reimburse conditional payments by an MAO for services rendered to a Medicare beneficiary. AHIP argues the district court’s interpretation of this provision is consistent with the statutory language, agency interpretation, and recent statutory changes in the PAID Act. Further, AHIP argues that a Medicare Part C plan should be entitled to directly enforce the provisions of the act to recover against another payer.  AHIP’s brief countered arguments by third party payers that recoveries by MA plans would provide them with “windfalls,” It points out that recoveries are an essential part of the MA bidding and payment structure, and that the statute’s Medical Loss Ratio requirement addresses any concerns about the level of recoveries obtained by MA plans.