“Double, Double, Toil & Trouble” – A Health Care Provider’s Potential Ability to Recover Double Damages Under the Medicare Secondary Payer Act

The MSPA provides for a private cause of action for double damages “in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).” 42 USC 1395y(b)(3)(A). The MSPA also provides that when a responsible primary plan does not “promptly meet its obligations,” Medicare is authorized to pay the entire amount and the primary plan is then obligated to reimburse Medicare. 42 USC 1395y(b)(2)(B); MSPA Claims 1, LLC v Tenet Florida, Inc, 918 F3d 1312, 1316 (CA 11, 2019).

The statute thus provides for recovery of double damages when a primary payer fails to pay or reimburse but does not provide for double damages for tardy payment. Thus, without a finding by the trial court on whether Defendant failed to provide primary payment or appropriate reimbursement under the MSPA, double damages cannot be imposed.

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