Class Action Certified by Florida MAOs Under the MSP for Double Damages

In MSPA Claims 1, LLC v. Ocean Harbor Casualty Insurance out of the Eleventh Circuit in Miami-Dade County, Florida, a class has been certified by all Florida Medicare Advantage Organizations (MAOs) against a no-fault insurer for failure to provide reimbursement for Medicare Advantage conditional payments by its enrollees.

I have previously blogged about other similar litigation by this Plaintiff (link here), MSP Recovery LLC, which also is known as MSPA Claims. The MSP Recovery law firm is currently the Plaintiff as well in numerous similar lawsuits and class actions filed at both the state and Federal levels for actions under the MSP- a list of class actions can be found here. MSP Recovery is an assignee of Florida Healthcare Plus (FHCP) which was an MAO that previously became insolvent. As an aside, FHCP was indicted for fraud in 2014.

Essentially, MSP Recovery is asserting in its nationwide litigation that by the no-fault insurer allowing the MAO to pay first creates a private cause of action for double damages for failure to provide reimbursement made by the MAO under the MSP. The 100-page Order certifying the class in the Ocean Harbor case can be found here.

Commentary: Of interest in the Ocean Harbor Order is the Court finding that the Plaintiff demonstrated substantial evidence through cross-referencing large amounts of data from various public and private sources: 

“Using a software system (the “MSP System” or “System”) designed and developed by Plaintiff and its counsel, Plaintiff has demonstrated by substantial evidence that it implemented a methodology to capture, compile, synthesize and funnel large amounts of data in order to identify claims class-wide. [J.A. 001480:13-25, 001481:1, 6-11, 001503:4-22, Ruiz Testimony, June 2, 2016; J.A. 002076:16-24 Celli Testimony, Sept. 13, 2016]. This System captures data from different sources to identify the Class-Member enrollees’ medical expenses incurred as a result of an automobile accident and which should have been paid for by Defendant. The System can also identify the amounts owed by using the Defendant’s electronic data, the MAO’s data, and data acquired from outside sources like the Department of Motor Vehicles, ISO and CMS.

The Plaintiffs are indicating that they have access to data from the Defendant (presumably Section 111 data), MAO data (Plaintiff’s data), DMV data (potentially public data), ISO (subscription based claims data), and CMS (likely because of the MAO relationship).   With this data, the Plaintiff’s contends that they can identify Class-Members, medical expenses incurred, and situations in which the Defendant should have been primary.  If accurate, this would be a very useful database, pulling from numerous sources (including the insurers themselves), to triangulate MSP recovery opportunities for MAOs.

Lastly, as to the substance of this litigation, no-fault insurers should be on high alert. Previous case law in Florida has found that a no-fault insurer’s responsibility under the MSP was simply triggered by the contract of insurance- no settlement or judgment needs to have occurred. It is unclear whether the Defendants in these cases had reported Ongoing Responsibility for Medical (ORM) in their MMSEA Section 111 data for these claims, which would have alerted Medicare or the MAO that another primary payer was available to pay.

I will continue to monitor the MSP Recovery litigation.

About the Author

Heather Schwartz Sanderson, Esq., MSCC, CHPE, CLMP, CMSP

Heather is Chief Legal Officer for Franco Signor LLC, the nation's compliance authority for Medicare Secondary Payer (MSP) matters. She has lectured on MSP compliance to the workers' compensation and liability insurance communities at conferences, associations, and individual offices nationwide. She is a regularly published author on court decisions and legislative reforms involving Medicare Set-Asides, conditional payments, and Mandatory Insurer Reporting issues. Understanding that compliance with the Medicare Secondary Payer Act can be at times complex and frustrating for those that handle claims with Medicare beneficiaries, Heather's goal is to speak and write with the primary goal being simple and understandable solutions to compliance. 

Heather can be reached at Heather.Sanderson@francosignor.com
Franco Signor's Blog can be found at: http://www.francosignor.com/msp-blog/

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