Page:Nealy v. Warner Chappell Music, Inc. (11th Cir. 2023).pdf/1

 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5717)). As the House Report put it, "Medicare has served to relieve private insurers of obligations to pay the costs of medical care in cases where there would otherwise be liability under the private insurance contract. The original concerns that prompted inclusion of this program policy in the law—the administrative difficulties involving in ascertaining private insurance liability and the attendant delays in payment—no longer justify retaining the policy, particularly if it is understood that immediate payment may be made by Medicare with recovery attempts undertaken only subsequently when liability is established."

No. 1167, 96th Cong., 2d Sess. 352 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5752) [sic] (capitalization removed). And Congress added the double-damages provision to “facilitate recovery of conditional payments.” Stalley v. Methodist Healthcare, 517 F.3d 911, 915–16 (6th Cir. 2008). Indeed, “[t]he MSP also creates a private right of action with double recovery to encourage private parties who are aware of non-payment by primary plans to bring actions to enforce Medicare’s rights.” Glover v. Liggett Grp., Inc.., [sic] 459 F.3d 1304, 1307 (11th Cir. 2006).

But Florida’s pre-suit demand statute turns this carefully balanced scheme upside down. Here’s how the pre-suit demand requirement plays out. As the statutory text and history show Congress intended things, an insurance company must affirmatively seek out secondary payments by Medicare and reimburse Medicare—or risk being sued for double damages.

But Florida insurance companies are effectively exempt from this requirement. They can wait until Medicare has approached them through a demand letter for payment and then reimburse Medicare during Florida’s 30-day cure period without ever fearing double damages. Florida insurance companies can be safely passive, secure in the knowledge that if Medicare comes to them, they will have at least thirty days before being at risk of double damages. Therefore, Florida private insurers can know that they owe Medicare money but also that they need pay Medicare back if and only if Medicare comes to them. And sometimes, Medicare won’t know and will have to absorb the cost. So we are right back where we started before Congress acted: Medicare’s costs will rise. Therefore, Florida’s pre-suit demand require “frustrates” Congress’s purpose.

I respectfully dissent.