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Click here for the full text of this decision FACTS:RenCare provided dialysis treatment to an employee of Southwest General Hospital, which is owned and operated by IASIS Healthcare Corp. The patient is a beneficiary of Southwest’s self-funded group health care plan, which was transferred to United Medical Resources (UMR) for administration in 2002. RenCare communicated with Southwest to verify insurance coverage before accepting the employee for treatment. According to RenCare, Southwest represented that their was full, primary coverage of the employee’s treatment. RenCare accepted the employee for treatment, yet, months later, Southwest refused to pay RenCare for the services. RenCare sued Southwest, IASIS and UMR (collectively Southwest) for fraud and misrepresentation. After the suit was filed, Southwest asserted for the first time that its benefits plan was secondary to Medicare, and that Medicare was the primary payer. At Southwest’s request, RenCare thus submitted invoices to TrailBlazer Health Enterprises, which processed Southwest’s Medicare claims. TrailBlazer rejected the invoices, saying that Medicare was the secondary payer. Medicare did not offer an explanation for why it was not accepting RenCare’s claims. Consequently, UMR was unable to produce written confirmation from Medicare that it was the primary payer. Southwest moved to dismiss RenCare’s suit for lack of subject-matter jurisdiction. Southwest asserted that the suit was one for Medicare benefits, or were at least “inextricably intertwined” with Medicare benefits. As such, they “arise under” the Medicare Act, and RenCare was required to first exhaust its administrative remedies before filing suit. The trial court granted Southwest’s motion. HOLDING:Reversed and remanded. The court acknowledges that 42 U.S.C. 405(g) is the sole avenue for judicial review of all “claims arising under” the Medicare Act. One of the tests for whether a claim arises under the act is whether the claim is inextricably intertwined with what is essentially a claim for Medicare benefits. The court reviews several federal cases. RenCare sued for fraud and misrepresentation, so the court lays out the elements RenCare would need to prove for each theory in order to prevail. Steering clear of deciding whether or not RenCare has indeed proved each element, the court only notes that in these causes of action do not result in a redeciding of a Medicare claims decision. Nor has RenCare sued the Secretary of Health & Human Services directly or sought reimbursement from Medicare for a claim that has been determined to be outside the act’s coverage. RenCare’s claims are not entwined at all with the act, much less inextricably intertwined. At bottom, RenCare’s claims are claims for payment pursuant to a contract between private parties. The court thus holds that RenCare’s tort claims do not “arise under” the Medicare Act. Consequently, RenCare was not required to exhaust its administrative remedies (if it had any) before filing suit. The court then looks through the summary of the plan’s description and found only one sentence that addresses primary-payer versus secondary-payer issues: “Medicare will pay primary, secondary or last to the extent stated in federal law.” This is far from explicit language that Medicare is the primary insurer in the types of dialysis treatments the Southwest employee underwent. The court thus turns to the Medicare as Secondary Payer Act, noting that the act includes a provision discussing whether Medicare has a reasonable expectation that a another insurer will be the primary payer. “Certainly Medicare did expect the Plan to pay as the primary payer, as evidenced by TrailBlazer’s rejection of RenCare’s claim[.] . . . And this expectation was reasonable since the Plan fails to make Medicare the primary payer after the expiration of the coordination period.” OPINION:Duncan, J.; Stone, Duncan, and Angelini, JJ.

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