Lien Resolution in Vaginal Mesh Lawsuits Just Got Messier

All the plaintiffs’ lawyers in over 40,000 vaginal-mesh cases have agreed upon the same firm to handle liens asserted by governmental and private health insurers. The defendants aren’t objecting either. But non-party Humana, on behalf of itself and other Part C Medicare Advantage Organizations, is objecting.

Humana asked MDL Judge Joseph R. Goodwin to include a provision in the proposed order to appoint Garretson Resolution Group as the lien administrator to bar GRG from negotiating the waiver of reporting requirements under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007.

Part C MAOs are private health insurers who receive money from the government to provide Medicare health-care plans. Federal law makes Medicare the secondary payer for medical services for its beneficiaries if there is another party responsible, such as a defendant who committed the tort that caused the beneficiaries’ need for medical treatment.

The plaintiffs’ plan “makes clear that the parties have agreed to retain GRG with the ancillary goal of impeding Part C Medicare plan sponsors, like Humana, from adequately enforcing their rights as secondary payers under the” Medicare Secondary Payer Act, wrote Gerald Lawrence, Richard W. Cohen, Peter D. St. Phillip, and Uriel Rabinowtiz, of Lowey Dannenberg Cohen & Hart in White Plains.

If those reporting requirements are waived, it would be impossible for Humana and other MAOs to identify settlements and pursue secondary payments from pelvic mesh defendants, Human argues.

“The Garretson motion sets up an unseemly game of hide-and-seek, whereby settling Medicare patients’ obligations are honored or dishonored based solely on the fortuity of whether they receive their Medicare benefits under Parts A and B directly from the government, or under Part C from an MAO,” Humana’s counsel said in their court papers.

Humana argues that it has the right to intervene in the case in order to protect its interests.

There are over 12.6 million Americans enrolled in Medicare Advantage plans offered by over 400 MAOs, and more than 2 million are enrolled in Humana’s Medicare Advantage plan and more than three millions are enrolled in Humana’s Medicare prescription drug plan, court papers said.

The settlement of mass torts is not the end point before plaintiffs get paid. After settlements, then liens must be sorted out. Insurers assert liens to be paid back for the health care plaintiffs have received for their injuries from the defendants’ products.

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