Humana Medical Plan, Inc. v. Western Heritage Insurance Company , 832 F.3d 1229 ( 2016 )


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  •                 Case: 15-11436       Date Filed: 08/08/2016       Page: 1 of 29
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-11436
    ________________________
    D.C. Docket No. 1:12-cv-20123-MGC
    HUMANA MEDICAL PLAN, INC.,
    Plaintiff - Appellee,
    versus
    WESTERN HERITAGE INSURANCE COMPANY,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (August 8, 2016)
    Before WILLIAM PRYOR, BLACK and PARKER, * Circuit Judges.
    BLACK, Circuit Judge:
    *
    Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
    sitting by designation.
    Case: 15-11436     Date Filed: 08/08/2016    Page: 2 of 29
    Defendant Western Heritage Insurance Co. (Western) appeals the district
    court’s order granting summary judgment in favor of Plaintiff Humana Medical
    Plan, Inc. (Humana) on Humana’s claims for double damages pursuant to the
    Medicare Secondary Payer Act (MSP) private cause of action, 42 U.S.C.
    § 1395y(b)(3)(A), and for a declaratory judgment regarding Western’s obligation
    to reimburse Humana for Medicare benefits that Humana paid on behalf of its
    Medicare Advantage plan enrollee. This case requires the Court to decide as a
    matter of first impression in this circuit whether the MSP private cause of action
    permits a Medicare Advantage Organization (MAO) to sue a primary payer that
    refuses to reimburse the MAO for a secondary payment. The Third Circuit
    previously considered this issue and concluded that an MAO may sue a primary
    payer under the MSP private cause of action. In re Avandia Mktg., Sales Practices
    & Prods. Liab. Litig., 
    685 F.3d 353
    , 367 (3d Cir. 2012). After review, we agree
    with the Third Circuit and affirm the order of the district court.
    I. BACKGROUND
    Humana operates as an MAO, providing Medicare Part C coverage (also
    known as a Medicare Advantage plan) to Medicare-eligible enrollees and receiving
    in return a per capita fee from the Centers for Medicare & Medicaid Services
    (CMS). In January 2009, Mary Reale, a Humana Medicare Advantage plan
    enrollee, was injured at Hamptons West Condominiums. Ms. Reale sought
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    medical treatment for her injury, and her medical providers billed Humana.
    Humana paid $19,155.41.
    In June 2009, Ms. Reale and her husband sued Hamptons West
    Condominium Association, Inc. (Hamptons West) in Florida state court for her
    injury. In March 2010, while the Reales’ suit was pending and in light of a
    pending settlement between Hamptons West and the Reales, Humana issued to Ms.
    Reale an Organization Determination in the amount of $19,155.41. The basis for
    Humana’s reimbursement request was the MSP, under which Medicare payments
    are secondary and reimbursable if any other insurer—even a tortfeasor’s liability
    insurer—is liable. See 42 U.S.C. § 1395y(b)(2); see also 
    id. § 1395w-22(a)(4).
    Although an administrative appeal process was available, no party appealed
    Humana’s Organization Determination.
    On April 20, 2010, in return for $115,000 from Hamptons West and its
    liability insurer, Western, the Reales released Hamptons West and Western. The
    Reales represented in the settlement agreement that there was no Medicare or other
    lien or right to subrogation. The Reales also agreed to indemnify Hamptons West
    and Western against any Medicare or other lien or right to subrogation.
    On May 7, 2010, Humana sued the Reales and their attorney in the Southern
    District of Florida seeking reimbursement of the $19,155.41. On the defendants’
    motion, the district court dismissed Humana’s complaint for lack of subject matter
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    jurisdiction, holding that an MAO does not have a private cause of action to
    recover reimbursement from a beneficiary under the MSP. The district court later
    vacated its order after Humana moved the district court to correct or amend the
    order. The district court scheduled a hearing to consider Humana’s motion. On
    the date of the hearing, Humana voluntarily dismissed its action against the Reales
    and their attorney.
    Perhaps in response Humana’s suit, Western and Hamptons West attempted
    to make Humana a payee on the settlement draft to the Reales. The Reales refused
    and on May 25, 2010 sought sanctions against Hamptons West for failing to
    comply with the settlement agreement. Thereafter, Hamptons West agreed to a
    stipulated order under which Humana would not be a payee on the check, but the
    Reales’ attorney would hold $19,155.41 in trust pending resolution of the Reales’
    litigation. Hamptons West and Western tendered the $115,000.
    On June 4, 2010, the Reales sued Humana in state court seeking a
    declaration as to the amount they owed Humana. Applying Florida law regarding
    collateral indemnity and subrogation, the trial court held that Humana was entitled
    to $3,685.03. See Humana Med. Plan, Inc. v. Reale, 
    180 So. 3d 195
    , 199 (Fla. 3d
    DCA 2015). Humana appealed, and in December 2015, Florida’s Third District
    Court of Appeal reversed for lack of jurisdiction. 
    Id. at 197,
    199. The court held
    that the Medicare Act creates an exclusive federal administrative process under
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    which a Medicare Advantage plan enrollee appeals through CMS an MAO’s denial
    of benefits or request for reimbursement. 
    Id. at 204–05.
    Upon exhaustion of the
    administrative process, the Medicare Act provides for federal judicial review and
    expressly preempts state law. 
    Id. Therefore, according
    to the court, Florida courts
    lack jurisdiction to adjudicate the dispute between Humana and Ms. Reale
    regarding her Medicare Advantage plan benefits. 
    Id. at 209.
    Having failed to secure reimbursement from Ms. Reale, in December 2011,
    Humana demanded that Western reimburse Humana’s secondary payment. On
    January 11, 2011, Humana sued Western in the action upon which this appeal
    proceeds. Humana pled three counts: Count One sought double damages under
    the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A); Count Two sought
    declaratory relief under the Medicare statutory and regulatory scheme; and Count
    Three sought damages under several state law theories including unjust enrichment
    and a contract implied by law. Western moved to dismiss, arguing among other
    things that the MSP does not permit an MAO to bring a private cause of action. In
    an endorsed order, the district court denied Western’s motion in part, dismissing
    the state law claims but finding that Humana had adequately pled a question
    regarding whether the MSP private cause of action is available to an MAO.
    On December 29, 2014, Humana moved for summary judgment. On March
    16, 2015, the district court granted summary judgment in favor of Humana, finding
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    that the MSP private cause of action is available to an MAO and that Humana is
    entitled to double damages, $38,310.82. Humana Med. Plan, Inc. v. W. Heritage
    Ins. Co., 
    94 F. Supp. 3d 1285
    (S.D. Fla. 2015). The district court entered judgment
    in favor of Humana, and Western appealed.
    II. STANDARD OF REVIEW
    We review de novo a grant or denial of summary judgment, viewing all facts
    and reasonable inferences in the light most favorable to the nonmoving party.
    Bridge Capital Inv’rs, II v. Susquehanna Radio Corp., 
    458 F.3d 1212
    , 1215 (11th
    Cir. 2006). “Summary judgment is appropriate only if there is no genuine issue of
    material fact and the moving party is entitled to judgment as a matter of law.”
    Hallmark Developers, Inc. v. Fulton Cty., Ga., 
    466 F.3d 1276
    , 1283 (11th Cir.
    2006); see also Fed. R. Civ. P. 56(a).
    III. DISCUSSION
    Before considering whether the MSP private cause of action is available to
    an MAO on these facts and, if so, whether Humana was entitled to summary
    judgment, we first introduce the Medicare Act, the MSP, the Medicare Advantage
    program, and pertinent CMS regulations.
    A. Statutory and Regulatory Background
    Traditional Medicare consists of Parts A and B of the Medicare Act. These
    are the fee-for-service provisions entitling eligible persons to have CMS directly
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    pay medical providers for their hospital and outpatient care. Part C is the Medicare
    Advantage program under which Medicare-eligible persons may elect to have an
    MAO (rather than CMS) provide Medicare benefits. Part D provides for
    prescription drug coverage, and Part E contains generally applicable definitions
    and exclusions. One such exclusion is the MSP.
    1. The MSP
    Frequently, more than one insurer is liable for an individual’s medical costs.
    For example, a car accident victim may be entitled to recover medical expenses
    from both her health insurer and a tortfeasor’s liability insurer. To address such
    situations, the MSP allocates liability between Medicare and other insurers, known
    as “primary plans.”1
    Before 1980, “Medicare paid for all medical treatment within its scope and
    left private insurers merely to pick up whatever expenses remained.” Bio-Med.
    Applications of Tenn., Inc. v. Cent. States Se. & Sw. Areas Health & Welfare Fund,
    
    656 F.3d 277
    , 278 (6th Cir. 2011). In effect, when Medicare and a private insurer
    were both liable for the same expenses, Medicare satisfied or partially satisfied the
    private insurer’s obligation. In 1980, in an effort to curb the rising costs of
    Medicare, Congress enacted the MSP, which “inverted that system; it made private
    1
    A “primary plan” is a group health plan, worker’s compensation plan or law, automobile
    or other liability insurance policy or plan, no-fault insurance, or self-insured plan that has made
    or can reasonably be expected to make payment for an item or service. 42 U.S.C.
    § 1395y(b)(2)(A).
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    insurers covering the same treatment the ‘primary’ payers and Medicare the
    ‘secondary’ payer.” 
    Id. Medicare benefits
    became an entitlement of last resort,
    available only if no private insurer was liable.
    The MSP, 42 U.S.C. § 1395y(b), is located in Part E of the Medicare Act.
    Paragraph (1) creates rules regarding group health plans. 
    Id. § 1395y(b)(1).
    Paragraph (2) establishes Medicare’s status as a secondary payer to a primary plan.
    Paragraph (2)(A) is a general prohibition against making Medicare payments for
    items or services for which a primary plan has paid or can reasonably be expected
    to pay. 
    Id. § 1395y(b)(2)(A).
    Paragraph (2)(B), entitled “Conditional payment”
    and cross-referenced as the sole exception to paragraph (2)(A), describes the
    circumstances and procedures under which Medicare can make a conditional
    payment notwithstanding its status as secondary payer. 
    Id. § 1395y(b)(2)(B).
    Under paragraph (2)(B), when the primary plan does not fulfill its duties, the
    Secretary of Health & Human Services may make a payment conditioned on
    reimbursement. 
    Id. § 1395y(b)(2)(B)(i).
    If the Secretary makes a conditional
    payment, the primary plan must reimburse the Secretary. 
    Id. § 1395y(b)(2)(B)(ii).
    Paragraph (2)(B) also establishes and defines a Government cause of action to
    recover from a primary plan. 
    Id. § 1395y(b)(2)(B)(iii);
    see also 42 C.F.R. § 411.24
    (describing a Government cause of action against a primary plan or any other
    person that received a primary payment). The remaining portions of
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    paragraph (2)(B) establish the United States’ subrogation rights in the event of a
    secondary payment, § 1395y(b)(2)(B)(iv), permit the Secretary to waive the
    conditional payment rules under some circumstances, § 1395y(b)(2)(B)(v),
    establish a limitations period, § 1395y(b)(2)(B)(vi), and create a disclosure
    mechanism to help primary plans determine whether they owe a reimbursement,
    § 1395y(b)(2)(B)(vii). Paragraph (2)(B) does not mention MAOs and refers
    almost exclusively to the Secretary, the United States, and the Medicare trust fund.
    Paragraph (3)(A), entitled “Private cause of action,” states as follows:
    There is established a private cause of action for damages (which shall
    be in an amount double the amount otherwise provided) 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 U.S.C. § 1395y(b)(3)(A). The MSP private cause of action is not a qui tam
    statute but is available to a Medicare beneficiary whose primary plan has not paid
    Medicare or the beneficiary’s healthcare provider. Stalley ex rel. United States v.
    Orlando Reg’l Healthcare Sys., Inc., 
    524 F.3d 1229
    , 1234 (11th Cir. 2009); see
    also Glover v. Liggett Grp., Inc., 
    459 F.3d 1304
    , 1310 (11th Cir. 2006) (explaining
    that the MSP private cause of action is available “against a primary plan that pays a
    judgment or settlement to a Medicare beneficiary, but fails to pay Medicare its
    share”). The Sixth Circuit holds that the MSP private cause of action is also
    available to a healthcare provider who has not been paid by a primary plan. Mich.
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    Spine & Brain Surgeons, PLLC v. State Farm Mut. Auto. Ins. Co., 
    758 F.3d 787
    ,
    790 (6th Cir. 2014). Although we have not explicitly addressed the issue, our case
    law implicitly supports the proposition. Cf. 
    Glover, 459 F.3d at 1307
    (suggesting
    the MSP private cause of action was intended “to encourage private parties who
    are aware of non-payment by primary plans to bring actions to enforce Medicare’s
    rights”).
    2. The Medicare Advantage program
    Part C, also known as the Medicare Advantage program, 2 was enacted in
    1997, 17 years after the MSP and 11 years after the MSP private cause of action.3
    “Congress’s goal in creating the Medicare Advantage program was to harness the
    power of private sector competition to stimulate experimentation and innovation
    that would ultimately create a more efficient and less expensive Medicare system.”
    In re 
    Avandia, 685 F.3d at 363
    (citing H.R. Rep. No. 105-217, at 585 (1997), 1997
    U.S.C.C.A.N. 176, 205-06 (Conf. Rep.)). Under the Medicare Advantage
    program, a private insurance company, operating as an MAO, administers the
    provision of Medicare benefits pursuant to a contract with CMS. CMS pays the
    MAO a fixed fee per enrollee, and the MAO provides at least the same benefits as
    2
    The Medicare Advantage program was originally called Medicare+Choice.
    3
    See Pub. L. No. 105-33, § 4001, 111 Stat. 251 (codified as amended at 42 U.S.C.
    §§ 1395w-21–1395ww-28); Pub. L. No. 99-509, § 9319, 100 Stat. 1874 (codified as amended at
    42 U.S.C. § 1395y(b); Pub. L. No. 96-499, § 953, 94 Stat. 2599 (codified as amended at 42
    U.S.C. § 1395y(b)).
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    an enrollee would receive under traditional Medicare. See 42 U.S.C. §§ 1395w-
    22(a), 1395w-23. In 2015, 31% of Medicare-eligible individuals were enrolled in a
    Medicare Advantage program. Medicare Advantage Enrollees as a Percent of
    Total Medicare Population, Henry J. Kaiser Family Foundation,
    http://kff.org/medicare/state-indicator/enrollees-as-a-of-total-medicare-population
    (last visited August 8, 2016). This percentage has risen every year since 2004. See
    
    id. Part C
    includes a reference to the MSP, entitled “Organization as secondary
    payer,” which states as follows:
    Notwithstanding any other provision of law, a Medicare+Choice
    organization may (in the case of the provision of items and services to
    an individual under a Medicare+Choice plan under circumstances in
    which payment under this subchapter is made secondary pursuant to
    section 1395y(b)(2) of this title) charge or authorize the provider of
    such services to charge, in accordance with the charges allowed under
    a law, plan, or policy described in such section--
    (A) the insurance carrier, employer, or other entity which under such
    law, plan, or policy is to pay for the provision of such services, or
    (B) such individual to the extent that the individual has been paid
    under such law, plan, or policy for such services.
    42 U.S.C. § 1395w-22(a)(4). In several cases, an MAO has contended that
    § 1395w-22(a)(4), sometimes called the MAO “right-to-charge” provision, creates
    an implied federal cause of action for an MAO to recover secondary payments, but
    courts have rejected this argument. See, e.g., Parra v. PacifiCare of Ariz., Inc.,
    
    715 F.3d 1146
    , 1153, 1154 (9th Cir. 2013) (explaining that the MAO right-to-
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    charge provision “describes when MAO coverage is secondary to other insurance,
    and permits (but does not require) a[n] MAO to include in its plan provisions
    allowing recovery against a primary plan . . . . [It] does not create a federal cause
    of action in favor of a[n] MAO”); Care Choices HMO v. Engstrom, 
    330 F.3d 786
    ,
    790 (6th Cir. 2003) (reaching a similar conclusion as to 42 U.S.C.
    § 1395mm(e)(4), which addresses secondary payment by Medicare-substitute
    HMOs); Nott v. Aetna U.S. Healthcare, Inc., 
    303 F. Supp. 2d 565
    , 571–72 (E.D.
    Pa. 2004) (concurring with Care Choices HMO as to both the HMO and the MAO
    provision).
    B. An MAO’s Rights Under the MSP
    In this case, Humana contends that an MAO can sue a primary plan under
    the MSP private cause of action, which is available “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 U.S.C. § 1395y(b)(3)(A).
    Humana’s contention appears to comport with CMS regulations, which provide
    that an MAO “will exercise the same rights to recover from a primary plan, entity,
    or individual that the Secretary exercises under the MSP regulations in subparts B
    through D of part 411 of this chapter.” 42 C.F.R. § 422.108(f). Under subpart B
    of part 411 of chapter 42, CMS regulations identify two causes of action available
    to the Secretary: one against a primary payer and one against any entity (including
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    a beneficiary) that receives a primary payment. 42 C.F.R. §§ 411.24(e), 411.24(g).
    Thus, according to CMS, an MAO may sue a primary plan or an MAO beneficiary
    (among others) under the MSP.
    Although the Secretary believes MAOs may sue in federal court to recover
    reimbursement from a primary plan, MAOs have no cause of action absent a
    statutory basis. See Alexander v. Sandoval, 
    532 U.S. 275
    , 286–87, 
    121 S. Ct. 1511
    , 1519–20 (2001). Humana does not contend that the MAO right-to-charge
    provision creates an implied cause of action. Nor does Humana contend that an
    MAO may avail itself of § 1395y(b)(2)(B)(iii), the Government’s cause of action.
    Rather, Humana argues that the MSP private cause of action is unambiguous and
    broadly permits any private party with standing (including an MAO) to sue a
    primary plan. The district court concurred with the Third Circuit’s analysis of the
    MSP private cause of action and held that “[t]he statutory text of the MSP Act
    clearly indicates that MAOs are included within the purview of parties who may
    bring a private cause of action.” We agree.
    The United States Supreme Court recently described our threshold analysis
    in statutory interpretation as follows:
    If the statutory language is plain, we must enforce it according to its
    terms. But oftentimes the meaning—or ambiguity—of certain words
    or phrases may only become evident when placed in context. So
    when deciding whether the language is plain, we must read the words
    in their context and with a view to their place in the overall statutory
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    scheme. Our duty, after all, is to construe statutes, not isolated
    provisions.
    King v. Burwell, __ U.S. __, 
    135 S. Ct. 2480
    , 2489 (2015) (quotation marks and
    citations omitted). We therefore read the MSP private cause of action in the
    context of the broader Medicare Act.
    The MSP private cause of action is available “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 U.S.C. § 1395y(b)(3)(A).
    Paragraph (1) regulates group health plans and is not at issue in this case. See 
    id. § 1395y(b)(1).
    Paragraph (2)(A) defines “primary plan” and bars any Medicare
    payment—including an MAO payment—when there is a primary plan. See 
    id. § 1395y(b)(2)(A).
    The sole exception to the prohibition in paragraph (2)(A) is the
    conditional payment scheme in paragraph (2)(B). See 
    id. Although paragraph
    (2)(A) does not expressly obligate primary plans to
    make payments, the defined term “primary plan” presupposes an existing
    obligation (whether by statute or contract) to pay for covered items or services.
    See 
    id. Therefore, a
    primary plan “fails to provide for primary payment (or
    appropriate reimbursement) in accordance with paragraph[] . . . (2)(A),” when it
    fails to honor the underlying statutory or contractual obligation.
    Thus, the three paragraphs work together to establish a comprehensive MSP
    scheme. Paragraph (2)(A) alters the priority among already-obligated entities and
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    contemplates primary plans fulfilling their payment obligation. Paragraph (2)(B)
    addresses the Secretary’s options when a primary plan fails to fulfill its payment
    obligation. Paragraph (3)(A), the MSP private cause of action, grants private
    actors a federal remedy when a primary plan fails to fulfill its payment obligation,
    thereby undermining the secondary-payer scheme created by paragraph (2)(A).
    We must now consider how an MAO fits within the MSP scheme and
    whether an MAO may avail itself of the MSP private cause of action in
    paragraph (3)(A). Western suggests that the MSP does not govern MAOs at all
    and that the MAO right-to-charge provision instead governs when and whether an
    MAO is a secondary payer. According to Western, because an MAO derives
    secondary payer status from the MAO right-to-charge provision rather than the
    MSP, an MAO may not sue under the MSP private cause of action.
    We reject Western’s reading as contrary to the plain language of the
    pertinent provisions. First, paragraph (2)(A) unambiguously refers to all Medicare
    payments, which include both traditional Medicare and Medicare Advantage plans.
    See In re 
    Avandia, 685 F.3d at 360
    ; 42 U.S.C. § 1395y(b)(2)(A) (regulating
    “[p]ayment under this subchapter”). Second, the MAO right-to-charge provision
    parenthetically refers to circumstances under which MAO payments are “made
    secondary pursuant to section 1395y(b)(2).” 42 U.S.C. § 1395w-22(a)(4)
    (emphasis added). A plain reading of paragraph (2)(A) and the MAO right-to-
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    charge provision therefore reveals that MAO payments are made secondary to
    primary payments pursuant to the MSP, not the MAO right-to-charge provision.
    This alone suggests that the MSP does not limit the cause of action in
    paragraph (3)(A) to cases in which traditional Medicare is the secondary payer.
    The fact that paragraph (2)(B), the sole exception to paragraph (2)(A), refers
    to the Secretary does not alter our analysis. See 
    id. § 1395y(b)(2)(B)
    (authorizing
    the Secretary to make conditional payment when a primary plan “has not made or
    cannot reasonably be expected to make [prompt] payment”). Even if
    paragraph (2)(B) does not apply to MAOs,4 neither paragraph (2)(A) nor
    paragraph (3)(A) contain the limiting language found in paragraph (2)(B).
    Paragraph (2)(A) establishes secondary payer status for all Medicare and defines
    “primary plan” with reference to pre-existing obligations. Thus, a primary plan
    that fails to make primary payment has failed to do so “in accordance with
    paragraphs (1) and (2)(A),” regardless of whether the secondary payer is the
    Secretary or an MAO. 
    Id. § 1395y(b)(3)(A).
    Western Heritage does not dispute that an MAO may make a secondary
    payment. The MAO right-to-charge provision confirms this right. See 
    id. 4 The
    parties do not argue and we do not consider whether the Government cause of
    action described in paragraph (2)(B) was intended to be available to MAOs. See In re 
    Avandia, 685 F.3d at 364
    n.18 (“Because Congress clearly intended there to be parity between MAOs and
    traditional Medicare, we find additional support for our decision in § 1395y(b)(2)(B)(iii), the
    government’s cause of action for recovery from primary payers, which also provides for double
    damages.”); 42 C.F.R. § 411.108(f) (“The [MAO] will exercise the same rights to recover from a
    primary plan, entity, or individual that the Secretary exercises under the MSP regulations . . . .”).
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    § 1395w-22(a)(4) (establishing an MAO’s right to charge a plan “under
    circumstances in which payment under this subchapter is made secondary pursuant
    to section 1395y(b)(2)”). Fulfilling our duty to “read the words in their context
    and with a view to their place in the overall statutory scheme” and to “construe
    statutes, not isolated provisions,” 
    King, 135 S. Ct. at 2489
    , we note that other
    aspects of the Medicare Act indicate an MAO must make a secondary payment any
    time the Secretary would do so. An MAO’s payment obligation under Part C is
    coextensive with that of the Secretary under Parts A and B. See 42 U.S.C.
    § 1395w-22(a)(1)(A) (An MAO “shall provide” its enrollees with the benefits to
    which they would be entitled under traditional Medicare.); 
    id. § 1395w-22(a)(2)(A)
    (An MAO satisfies § 1395w-22(a)(1)(A) if it “provides payment in an amount . . .
    equal to at least the total dollar amount of payment . . . as would otherwise be
    authorized under parts A and B . . . .”). In other words, if the Secretary would pay
    “X” amount for covered service “Y,” then an MAO must also pay “X” amount for
    covered service “Y.” See 
    id. Thus, Part
    C of the Medicare Act prohibits an
    MAO’s avoiding paying benefits whenever the Secretary would pay under
    traditional Medicare. Collectively, these provisions clarify that Congress
    empowered (and perhaps obligated) MAOs to make secondary payments under the
    same circumstances as the Secretary. See 
    id. §§ 1395w-22(a)(1)(A),
    1395w-
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    22(a)(2)(A), 1395w-22(a)(4). Thus, an MAO both has secondary payer status and
    can make reimbursable secondary payments.
    We conclude that paragraph (3)(A), the MSP private cause of action, permits
    an MAO to sue a primary plan that fails to reimburse an MAO’s secondary
    payment. Paragraph (3)(A) is broadly available “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 U.S.C. § 1395y(b)(3)(A). We
    have held that paragraph (3)(A) is not a qui tam statute but is instead available only
    when the plaintiff has suffered an injury in fact. See 
    Stalley, 524 F.3d at 1234
    .
    Neither the MSP nor our case law places any other restriction on the class of
    plaintiffs to whom the MSP private cause of action is available. But see Harris
    Corp. v. Humana Health Ins. Co. of Fla., Inc., 
    253 F.3d 598
    , 605–06 n.5 (11th Cir.
    2001) (affirming dismissal of a claim under § 1395y(b)(3)(A) because the dispute
    involved priority between two non-Medicare health insurance plans).
    We see no basis to exclude MAOs from a broadly worded provision that
    enables a plaintiff to vindicate harm caused by a primary plan’s failure to meet its
    MSP primary payment or reimbursement obligations. As stated above, the MSP
    applies to MAOs. An MAO has a statutory right to charge a primary plan when an
    MAO payment is made secondary pursuant to the MSP. 42 U.S.C. § 1395w-
    22(a)(4); see also 42 C.F.R. § 422.108 (elaborating upon an MAO’s right to charge
    18
    Case: 15-11436    Date Filed: 08/08/2016    Page: 19 of 29
    a primary plan and means of recovering a secondary payment). In such a case, the
    primary plan’s failure to make primary payment or to reimburse the MAO causes
    the MAO an injury in fact. Therefore, an MAO may avail itself of the MSP private
    cause of action when a primary plan fails to make primary payment or to reimburse
    the MAO’s secondary payment.
    C. Humana’s Entitlement to Summary Judgment
    Having found that Humana may bring its claim under the MSP private cause
    of action, we must decide whether Humana was entitled to summary judgment in
    its favor on the claim. The MSP private cause of action permits an award of
    double damages when a primary plan fails to provide for primary payment or
    appropriate reimbursement. 42 U.S.C. § 1395y(b)(3)(A). Thus, a plaintiff is
    entitled to summary judgment on a § 1395y(b)(3)(A) claim when there is no
    genuine issue of material fact regarding (1) the defendant’s status as a primary
    plan; (2) the defendant’s failure to provide for primary payment or appropriate
    reimbursement; and (3) the damages amount. We agree with the district court that
    Western is a primary plan under § 1395y(b)(2)(A) because it is a liability insurer
    that, under a settlement agreement, paid Ms. Reale, a Medicare Advantage plan
    enrollee, for covered medical expenses. We discuss the second and third elements
    in turn below.
    19
    Case: 15-11436     Date Filed: 08/08/2016   Page: 20 of 29
    Western argues that it did not fail to provide for payment or appropriate
    reimbursement because Western (1) lacked constructive knowledge that Medicare
    made a payment; and (2) attempted to make Humana a payee on the settlement
    check but was ordered instead to pay $19,155.41 into trust pending resolution of a
    dispute regarding the amount of Humana’s entitlement. As the district court noted,
    Western’s second argument forecloses its first. Western’s attempt to list Humana
    as a payee on the settlement check indicates that Western knew of Humana’s lien.
    Western seeks to evade this conclusion by asserting its ignorance of Humana’s
    status as an MAO. We see no value in this distinction. Western had actual
    knowledge of Humana’s claim, and as a settling party in tort litigation, Western
    had the ability to discern the precise nature of Ms. Reale’s health insurance
    coverage. See Fla. R. Civ. P. 1.280(b)(2) (“A party may obtain discovery of the
    existence and contents of any agreement under which any person may be liable to
    satisfy part or all of a judgment that may be entered in the action or to indemnify or
    to reimburse a party for payments made to satisfy the judgment.”); 42 C.F.R.
    § 422.108(b)(3) (requiring MAOs to coordinate benefits with primary payers); cf.
    United States v. Baxter Int’l, Inc., 
    345 F.3d 866
    , 901 (11th Cir. 2003) (“[W]hen the
    primary insurer later pays, Medicare’s prior payment will normally be a matter of
    ascertainable fact.”). Western therefore had constructive knowledge of Humana’s
    Medicare payment.
    20
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    We reject Western’s contention that it provided for appropriate
    reimbursement by placing $19,155.41 into trust pending resolution of the dispute
    between Ms. Reale and Humana. The MSP private cause of action does not
    describe what constitutes “appropriate reimbursement.” We therefore seek
    guidance from the CMS regulations. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
    Council, Inc., 
    467 U.S. 837
    , 844, 
    104 S. Ct. 2778
    , 2782 (1984) (When “the
    legislative delegation to an agency on a particular question is implicit rather than
    explicit,” we “may not substitute [our] own construction of a statutory provision
    for a reasonable interpretation made by the administrator of an agency.”).
    If a beneficiary or other party fails to reimburse Medicare within 60 days of
    receiving a primary payment, the primary plan “must reimburse Medicare even
    though it has already reimbursed the beneficiary or other party.” 42 C.F.R.
    § 411.24(i)(1). This regulation applies equally to an MAO. See 
    id. § 422.108(f).
    Thus, Western’s payment to Ms. Reale or any other party is insufficient to
    extinguish its prospective reimbursement obligation to Humana. Sixty days after
    Western tendered the settlement to the Reales and their attorney, because no party
    reimbursed Humana, Western became obligated to directly reimburse Humana.
    See 
    id. § 411.24(i)(1).
    Even after receiving Humana’s demand for reimbursement,
    Western has declined to do so. Therefore, Western failed to provide for
    “appropriate reimbursement” as defined by the CMS regulations.
    21
    Case: 15-11436     Date Filed: 08/08/2016    Page: 22 of 29
    Western also disputes the damages amount, contesting both the amount of
    Humana’s reimbursement entitlement and the appropriateness of double damages.
    Before Western settled with the Reales, Humana issued to Ms. Reale an
    Organization Determination for $19,155.41. Ms. Reale was entitled to
    administratively appeal that amount but did not. See 42 U.S.C. § 1395w-22(g).
    The amount that Humana may recover is therefore fixed, at least as to Ms. Reale.
    See 42 C.F.R. § 422.576. Even if Western retains the right to dispute the amount,
    its argument regarding Ms. Reale’s procurement costs lacks merit. A beneficiary’s
    procurement costs do not offset an MAO’s recovery if the MAO must litigate to
    secure repayment. See 42 C.F.R. §§ 411.37(e), 422.108(f). This is the third
    lawsuit in which Humana has attempted to recover its $19,155.41 secondary
    payment. Therefore, Humana may recover the full amount.
    Finally, we agree with the district court that double damages are required by
    statute. Unlike the Government’s cause of action, the private cause of action uses
    the mandatory language “shall” to describe the damages amount. Compare 42
    U.S.C. § 1395y(b)(2)(B)(iii) (“The United States may . . . collect double
    damages . . . .” (emphasis added)) with 42 U.S.C. § 1395y(b)(3)(A) (Damages
    “shall be in an amount double the amount otherwise provided.” (emphasis added));
    see also Baxter Int’l, 
    Inc., 345 F.3d at 905
    . Therefore, the district court correctly
    22
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    ordered Western to reimburse Humana $38,310.82, double the amount to which
    Humana was otherwise entitled.
    IV. CONCLUSION
    For the foregoing reasons, we affirm the district court’s order granting
    summary judgment in favor of Humana.
    AFFIRMED.
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    WILLIAM PRYOR, Circuit Judge, dissenting:
    Medicare is governed by a notoriously complex statute, but a brief summary
    of the four provisions relevant to this appeal reveals why Humana failed to state a
    claim. Section 1395y(b)(3)(A) creates “a private cause of action . . . 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 U.S.C.
    § 1395y(b)(3)(A) (emphasis added). Paragraph (2)(A) prohibits “[p]ayment under
    this subchapter . . . except as provided in subparagraph (B).” 
    Id. § 1395y(b)(2)(A).
    Subparagraph (B) empowers the Secretary of Health and Human Services to make
    payments conditioned on reimbursement of the Medicare Trust Funds, but it says
    nothing about Medicare Advantage Organizations. See 
    id. § 1395y(b)(2)(B)
    .
    Medicare Advantage Organizations instead charge primary plans in accordance
    with section 1395w-22(a)(4). Because Humana is not the Secretary and its coffers
    are not the Trust Funds, it cannot seek payment or reimbursement “in accordance
    with paragraphs (1) and (2)(A).” For that reason, section 1395y(b)(3)(A) creates no
    private cause of action for a Medicare Advantage Organization. I respectfully
    dissent.
    The scope of section 1395y(b)(3)(A) is limited by its references to
    paragraphs (1) and (2)(A). Paragraph (1) generally prohibits group health plans and
    large group health plans from denying benefits on the ground that an individual is
    24
    Case: 15-11436     Date Filed: 08/08/2016    Page: 25 of 29
    eligible for Medicare Part A. See 
    id. § 1395y(b)(1).
    Paragraph (2)(A) forbids the
    Secretary from making payments when an insurance policy has paid, or can
    reasonably be expected to pay, with one exception:
    Payment under this subchapter may not be made, except as provided
    in subparagraph (B), with respect to any item or service to the extent
    that—
    ...
    (ii) payment has been made or can reasonably be expected to be made
    . . . under a . . . liability insurance policy or plan (including a self-
    insured plan) . . . .
    In this subsection, the term “primary plan” means a . . . liability
    insurance policy or plan (including a self-insured plan) . . . to the
    extent that clause (ii) applies.
    
    Id. § 1395y(b)(2)(A)
    (emphasis added). The one exception—“except as provided
    in subparagraph (B)”—applies to a payment by the Secretary conditioned on
    reimbursement of the Trust Funds:
    (i) Authority to make conditional payment
    The Secretary may make payment under this subchapter with respect
    to an item or service if a primary plan described in subparagraph
    (A)(ii) has not made or cannot reasonably be expected to make
    payment with respect to such item or service promptly (as determined
    in accordance with regulations). Any such payment by the Secretary
    shall be conditioned on reimbursement to the appropriate Trust Fund
    in accordance with the succeeding provisions of this subsection.
    (ii) Repayment required
    Subject to paragraph (9), a primary plan, and an entity that receives
    payment from a primary plan, shall reimburse the appropriate Trust
    Fund for any payment made by the Secretary under this subchapter
    with respect to an item or service if it is demonstrated that such
    25
    Case: 15-11436     Date Filed: 08/08/2016   Page: 26 of 29
    primary plan has or had a responsibility to make payment with respect
    to such item or service.
    
    Id. § 1395y(b)(2)(B)(i)–(ii).
    Subparagraph (B) also gives the Secretary a cause of
    action to recover reimbursement against primary plans, 
    id. § 1395y(b)(2)(B)
    (iii),
    and subrogates the United States to any right to payment under a primary plan, 
    id. § 1395y(b)(2)(B)
    (iv).
    A Medicare Advantage Organization receives no authority from paragraphs
    (1) and (2)(A). Paragraph (1) addresses the case of a group health plan or a large
    group health plan that denies benefits because an individual is eligible for
    Medicare Part A. Paragraph (2)(A) refers to subparagraph (B), which repeatedly
    and exclusively refers to the Secretary and the Trust Funds: “[t]he Secretary may
    make payment,” “[a]ny such payment by the Secretary shall be conditioned on
    reimbursement to the appropriate Trust Fund,” “an entity that receives payment
    from a primary plan[] shall reimburse the appropriate Trust Fund for any payment
    made by the Secretary,” and “[i]f reimbursement is not made to the appropriate
    Trust Fund . . . the Secretary may charge interest.” 
    Id. § 1395y(b)(2)(B).
    A
    Medicare Advantage Organization is not the Secretary, and it does not make
    payments out of the Trust Funds. As a result, it cannot seek payment or
    reimbursement in accordance with paragraph (2)(A).
    A separate provision, section 1395w-22(a)(4), gives Medicare Advantage
    Organizations the power to charge an insurer “under circumstances in which
    26
    Case: 15-11436     Date Filed: 08/08/2016    Page: 27 of 29
    payment under this subchapter is made secondary pursuant to section
    1395y(b)(2)”:
    Notwithstanding any other provision of law, a [Medicare Advantage]
    organization may (in the case of the provision of items and services to
    an individual under a [Medicare Advantage] plan under circumstances
    in which payment under this subchapter is made secondary pursuant
    to section 1395y(b)(2) of this title) charge or authorize the provider of
    such services to charge, in accordance with the charges allowed under
    a law, plan, or policy described in such section—
    (A) the insurance carrier, employer, or other entity which under such
    law, plan, or policy is to pay for the provision of such services . . . .
    
    Id. § 1395w-22(a)(4).
    Section 1395w-22(a)(4) mentions section 1395y(b)(2), but
    the cross-reference “simply explains when MAO coverage is secondary to a
    primary plan . . .—that is, under the same circumstances when insurance through
    traditional Medicare would be secondary.” Parra v. PacifiCare of Ariz., Inc., 
    715 F.3d 1146
    , 1154 (9th Cir. 2013). It does not subject Medicare Advantage
    Organizations to all of the parts of section 1395y(b)(2). Instead, it establishes a
    different regulatory regime—one that does not require Medicare Advantage
    Organizations to be secondary payers, impose time limits on reimbursement,
    require demonstrated responsibility, establish an extensive administrative process,
    give the Secretary a cause of action, or subrogate the United States to any right to
    payment by a primary plan. A Medicare Advantage Organization charges primary
    plans in accordance with section 1395w-22(a)(4), not section 1395y(b)(2)(A).
    27
    Case: 15-11436   Date Filed: 08/08/2016   Page: 28 of 29
    The majority agrees with the Third Circuit in In re Avandia Marketing, Sales
    Practices & Products Liability Litigation, 
    685 F.3d 353
    (3d Cir. 2012), that section
    1395y(b)(3)(A) is “a broadly worded provision,” Majority Op. at 19, but the
    majority and the Third Circuit fail to take into account the phrase “in accordance
    with paragraphs (1) and (2)(A).” Nothing in section 1395y(b) addresses the
    coordination of benefits with a Medicare Advantage Organization. A Medicare
    Advantage Organization instead is paid “in accordance with” section 1395w-
    22(a)(4).
    The majority also observes that Humana’s position “appears to comport with
    CMS regulations, which provide that an MAO ‘will exercise the same rights to
    recover from a primary plan, entity, or individual that the Secretary exercises under
    the MSP regulations in subparts B through D of part 411 of this chapter,’” Majority
    Op. at 13 (quoting 42 C.F.R. § 422.108(f)), but the majority fails to explain how it
    does so. Humana sued under section 1395y(b)(3)(A), which creates “a private
    cause of action.” The Secretary cannot avail herself of a private cause of action in
    her official capacity. She instead must sue under the official cause of action in
    section 1395y(b)(2)(B)(iii). But section 1395y(b)(2)(B)(iii) does not allow
    Humana, a private party, to sue. The regulation cited by the majority does not
    interpret section 1395y(b)(3)(A), and it certainly cannot rewrite the clear text of
    that section.
    28
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    Finally, the majority is incorrect that “an MAO must make a secondary
    payment any time the Secretary would do so.” Majority Op. at 17–18. With certain
    exceptions, section 1395w-22 requires a Medicare Advantage Organization to
    provide the same benefits to enrollees that the Secretary would provide under Parts
    A and B. See 42 U.S.C. § 1395w-22(a)(1)(A); 
    id. § 1395w-22(a)(2)(A)
    . But a
    Medicare Advantage Organization remains free to be the primary payer under
    section 1395w-22. And even if the majority were correct that section 1395w-22
    required a Medicare Advantage Organization to be a secondary payer, those
    payments would still be in accordance with section 1395w-22, not sections
    1395y(b)(1) and 1395y(b)(2)(A).
    I would conclude that the text of the statute is clear and that Humana failed
    to state a claim. The plain meaning of the statute moots the other issues in this
    appeal, and I express no view on them. Because a Medicare Advantage
    Organization is not the Secretary and its treasury is not the Trust Funds, I
    respectfully dissent.
    29