“Medicare Advantage Misconceptions Abound” According to Humana Inc.’s Counsel
The October 2014 issue of the American Bar Association’s Health Law Section publication, The Health Lawyer, has an interesting lead essay, one that I believe would be useful both for practitioners and law students to read. D. Gary Reed, Associate General Counsel for Humana Inc., argues that there are two distinctly different versions of the Medicare Advantage program of health coverage, the version he believes was intended by Congress and the version “found in pleadings, briefs and court decisions.”
Attorney Reed starts with a concise statutory overview of coverage under Medicare Part C, leading to introduction of his central thesis: “Litigants and courts too often depend on prior case law for their understanding of the Medicare statute, rather than on the statute itself.”
Reed writes clearly and offers helpful citations. He points out that the Medicare statute is, at best, intimidating to the “uninitiated” and the confusion is made worse by inconsistent use of citations to provisions of the legislative Act, rather than to the United States Code.
He offers an “ABCs of Medicare” followed by a more detailed examination of the subparts of Part C, and describes what it means to “opt out.” He outlines his approach to how the Medicare Advantage program is intended to function, using examples to show how he believes courts have gotten it wrong. He argues there is “no such thing as a Medicare Advantage insurance policy.” The misconception that there is a “policy,” he says, “lulls general practitioners and provider collection counsel into suing for breach of the nonexistent Medicare Advantage insurance policy, instead of pursing the exclusive Medicare appeals process.”
Reed contends that “[t]ime and money spent by Medicare Advantage organizations defending litigation driven by these misconceptions diverts resources from caring for aged and disabled Medicare beneficiaries.” He says “a contributing factor may be the dearth of authoritative materials — text books, law review articles, or the like — that explain and contextualize the program in readily understandable terms.”
After reading the article, I ask whether a fair implication arises from the apparently significant numbers of claims being made, even if incorrectly and in the wrong forum. Doesn’t that suggest there could be real problems with Medicare Advantage? Reed writes that it is important to understand, and to use available statistics to demonstrate, that “the Medicare appeals process exists and is actually available to Medicare Advantage enrollees.” But is Medicare Advantage meeting the real needs of health care service users in this program?
The complete article by Reed, “Medicare Advantage Misconceptions Abound,” appears in the 2014 October issue of The Health Lawyer.