medicare advantage plans & tort recovery rights

One Federal Court’s Perspective on the Recovery Debate

Recently, the federal district court presiding over Humana Medical Plan, Inc. v. Reale held that a Medicare Advantage plan does not have the same independent right to sue third-party tortfeasors as does the United States under the Medicare Secondary Payer Act (“MSP”). Humana Medical Plan, the administrator of a Medicare Advantage plan, sought reimbursement under the MSP of conditional payments it made on behalf of Mary Reale, a Medicare Advantage plan participant. The court dismissed the recovery action stating that the court lacked subject matter jurisdiction because Humana lacked standing under the MSP. The scope of a Medicare Advantage plan’s right of recovery has been a hotly contested matter. Up until the Reale decision, there had been no definitive case law on the matter.

We at the Garretson Resolution Group (“GRG”) provide this practice tip to assist settling parties (or parties who have obtained judgments) in identifying the roles and responsibilities that are a part of achieving total Medicare compliance. This case may be instructive in identifying who has rights to sue and how those rights are to be enforced where Medicare beneficiaries are concerned. It is important to note that Reale is only a district court decision, which we fully expect to appeal. However, it is nevertheless useful outside of the Eleventh Circuit by settling or negotiating parties as another discussion item when seeking an equitable resolution for all constituents involved.


Among the tips included in this pamphlet are:

  • What are Medicare Advantage (“MA”) plans and how do they differ from “regular” Medicare arrangements?
  • How did the court arrive at the conclusion that MA plans do not have a private cause of action in federal court under the MSP provisions?
  • What impact does this decision have on MA plan’s recovery rights going forward?
  • Does the decision stand as a complete prohibition of a MA plan’s claim for reimbursement?
  • How can the Reale decision be utilized by parties involved in settlement or negotiations with MA plans?