A reported case is now moving forward with discovery. The case is one where there is a challenge to Medicare's MSP collection practices regarding conditional payments.
The challenge is to the requirement to reimburse Medicare within 60 days prior to resolution of any appeal or waiver request. Also challenged is the practice of PI attorneys having to withhold funds to cover Medicare conditional payments.
The plaintiffs are seeking declaratory and injunctive relief based upon the fact that the Secretary of Health and Human Services exceeded her authority under the Medicare Secondary Payer Act and violated their rights under the Due Process Clause.
This is a key case for consumer lawyers - read it here: Slip Copy, 2010 WL 1452932 (D.Ariz.)
Eventually, the Court will have to determine whether Medicare can require prepayment of conditional payments prior to a determination of whether the amount is correct through the administrative appeal process and whether Medicare can make plaintiff’s counsel financially responsible if they do not hold or immediately provide the settlement proceeds to Medicare.
Further discovery was ordered and the opinion held that judicial review will go beyond the administrative record for the individual plaintiff’s MSP claims. I have attached the recent holding.