Medicare Secondary Payer Act (MSPA) in the workmen’s compensation context; 42 USC §§ 1395y(b)(2)(A), (b)(2)(B)(ii), & (b)(3)(A); Private cause of action for double damages; Demonstration of responsibility to pay; Condition precedent; Distinguishing Bio-Medical Applications of TN, Inc v Central States Health SE & SW Areas Health & Welfare Fund (6th Cir); Glover v Ligget (11th Cir); Good faith; DaVita Inc v Virginia Mason Mem’l Hosp (9th Cir)

The court held that although “an initial decision in the workmen’s compensation proceedings has now arguably demonstrated [defendant-] Conifer’s responsibility for” the injured person’s (R) medical care, plaintiff-Bronson Healthcare “has not demonstrated that Conifer failed to reimburse Medicare within the meaning of the MSPA,” so the trial court erred by granting summary disposition for the medical provider. “Because Bronson Healthcare filed this litigation prematurely, Conifer had no real opportunity to reimburse Medicare” and “[a]t the very least, Conifer should be given that opportunity, as other workmen’s compensation insurers have been.” Thus, the court vacated and remanded with instructions to the trial court to dismiss without prejudice. “When a workmen’s compensation insurer does not pay a medical provider for services rendered because there is a dispute over coverage, and Medicare makes a conditional payment under the [MSPA], does the provider have a private cause of action for double damages under the MSPA?” As long as the insurer “has a good-faith ground for disputing coverage, the service provider does not have a viable cause of action unless and until it is demonstrated that the insurer has a responsibility to pay but fails to do so in a timely manner consistent with the MSPA.” Conifer Insurance “provided workmen’s compensation insurance to the Fraternal Order of Eagles[.]” R fell and injured bartending at the Eagles. “Bronson Healthcare billed Conifer for [R’s] medical expenses, but Conifer denied the claim on the basis that [R] was a volunteer and not an employee covered under the plan. Medicare conditionally paid for [her] medical expenses.” Conifer maintained “that, when Bronson Healthcare sued the insurer, there was, at minimum, a good-faith question whether [R] was covered under the policy as an ‘employee’ of the Fraternal Order of Eagles when she was injured. Given this, according to Conifer, any requirement that it cover [R’s] medical bills would not have arisen until and unless a court or administrative agency determined that she was, in fact, an employee and not a volunteer.” The court concluded that based on the record before it, there was “no genuine issue of material fact that Conifer had a good-faith basis for disputing coverage; thus, something more than mere reference to the plan documents and law was needed to demonstrate that Conifer was, in fact, responsible for payments related to [R’s] care. Beyond a plain reading of the statute, we further recognize that a contrary holding would have several distorting effects in cases like this one.” It also concluded that to “be clear, neither the plain text of the MSPA nor our holding today should be read to give carte blanche to a workmen’s compensation insurer or other primary payer to deny payment when the law or the plan’s own terms and conditions plainly provide coverage.”