Malpractice? (Continued from page 13)
designed to achieve.
2. The conference report confirms, that as before 1989, “[i]n cases in- volving liability insurance, providers are instructed to bill Medicare first for conditional pay- ments, and Medicare subsequently recovers its costs from the liability insurer of the person who caused the injury.” See H.R. Conf. Rep. No. 101-386, at 818-26 (1989), reprinted in 1989 U.S.C.C.A.N. 3018, 3421-29.
3. The cross reference to (A) simply establishes that reimbursement is not required unless payment has been made (or could be) made un- der another insurance plan and that even though the language from the 1984 version (ie. Any payment un- der [the Medicare Program] with respect to any item or service shall be conditioned on reimbursement to the appropriate Trust Fund established by this title when notice or other infor- mation is received that payment for such item or service has been made or could be made under such a law, policy, plan or insurance) is omitted the cross reference to (A) does the
1984 Version
Any payment under [the Medicare Program] with respect to any item or service shall be condi- tioned on reimburse- ment to the appropriate Trust Fund…
1989 Version
Means exactly the same as
Any payment under [the Medicare program] with respect to any item or service to which sub- paragraph (A) applies shall be conditioned on reimbursement to the appropriate Trust Fund…
work of the omitted language. In other words, the Government ar- gues:
4. Any interpretation of the current law which suggests that reimburse- ment is limited to only those situations where at the time Medi- care paid payment had already been made or could be expected to be made promptly defies common sense because this would increase, not decrease, Medicare’s overall costs.
5. That the prompt payer argument makes no sense in light of the statute’s reference to liability insur- ance since a liability insurance payment will almost always not be made promptly.
6. If the statute is ambiguous then the
agency’s interpretation is entitled to deference. See United States v. Mead Corp., 121 S.Ct. 2164, 2171 (2001).
7. The agency charged with enforcing the MSP provisions has established that Medicare benefits are payable notwithstanding potential liability insurance payments, but are recover- able once the insurer’s obligation is established. 42 C.F.R. § 411.54(a).
The Arguments To Be Made In The Traditional Tort Case
• The scope of the MSP statute is narrow.
• Subparagraph B means just what it says: When Subparagraph (A) ap- plies, Medicare may either withhold payment or make a conditional payment subject to Subparagraph (B) reimbursement.
• Only conditional payments need be repaid.
• The Government must be a second- ary payer at the time it made the payment for the medical service.
• In order to be a secondary payer there must be a primary payer.
• A primary payer is an entity that must, among other things, pay promptly.
Legislative history has no place in the
court’s construction of a law when the stat- ute is clear on its face.5 • In any event there is no legislative history that shows congress in- tended MSP’s prompt payment requirements to limit only those instances (as the Government has
(Continued on page 16) 5
In interpreting a statute a court should al- ways turn first to one, cardinal cannon be- fore all others. We have stated time and time again that courts must presume that a legis- lature says in a statute what it means and means in a statute what it says. Conn. Nat’l Bank v Germain, 503 U.S. 249, 253-54 (1992).
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