v. Centura Health Corporation , 2020 COA 38 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 5, 2020
2020COA38
No. 18CA1646, Garcia v. Centura Health Corporation —
Creditors and Debtors — Hospital Liens — Lien for Hospital
Care
A division of the court of appeals considers whether the
Colorado hospital lien statute permits a lien against a patient when
Medicare is a wrongfully injured patient’s primary health insurance,
and the hospital has not billed Medicare. See § 38-27-101, C.R.S.
2019. The division concludes that (1) the statute requires a
hospital to bill Medicare before filing a lien; (2) the legislative history
supports this interpretation; and (3) this interpretation does not
conflict with federal law.
This decision is contrary to a recent decision by another
division of the court of appeals. See Harvey v. Centura Health Corp.
& Catholic Health Initiatives, 2020 COA 18.
COLORADO COURT OF APPEALS 2020COA38
Court of Appeals No. 18CA1646
City and County of Denver District Court No. 17CV32645
Honorable Ross B.H. Buchanan, Judge
Jina Garcia,
Plaintiff-Appellant,
v.
Centura Health Corporation,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE RICHMAN
Freyre and Grove, JJ., concur
Announced March 5, 2020
Sawaya, Rose, McClure & Wilhite, P.C., Robert E. Caldwell, Denver, Colorado;
The Hannon Law Firm, LLC, Kevin S. Hannon, Denver, Colorado, for Plaintiff-
Appellant
Hall, Render, Heath & Lyman, P.C., Melvin B. Sabey, Denver, Colorado, for
Defendant-Appellee
Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood,
Colorado for Amicus Curiae Colorado Trial Lawyers Association
¶1 Under Colorado’s hospital lien statute, section 38-27-101,
C.R.S. 2019, as amended in 2015, may a hospital place a lien on a
person (1) who has been injured as a result of negligence or other
wrongful acts and (2) whose primary health insurance is Medicare,
without first billing Medicare? We answer “no” because in
amending the statute, the General Assembly sought to protect
insured patients from unnecessary liens — not to protect maximum
payments to hospitals serving insureds.
¶2 Consequently, we reverse the district court order dismissing
the claim of plaintiff, Jina Garcia, that defendant, Centura Health
Corporation (Centura), violated the hospital lien statute when it
filed a hospital lien against her before billing her primary health
insurance. We also reverse the court’s denial of Garcia’s motion for
summary judgment as to her individually.
I. The Hospital Lien Statute and Medicare
A. Prior Version of Lien Statute
¶3 Before 2015, the hospital lien statute provided, as relevant
here, that “[e]very hospital . . . which furnishes services to any
person injured as the result of the negligence or other wrongful acts
of another person . . . shall . . . have a lien for all reasonable and
1
necessary charges for hospital care upon the net amount payable . .
. as damages on account of such injuries.” § 38-27-101, C.R.S.
2014. Liens were limited in that they could not be filed to seek
unreasonable or unnecessary charges, or any charges incurred
after a judgment or settlement, or filed against persons covered by
workers’ compensation; and the lien created under the statute was
junior to an attorney’s lien.
¶4 A division of this court interpreted the statute in the context of
its purpose and its interaction with federal Medicare in Wainscott v.
Centura Health Corp., 2014 COA 105, an opinion on which the
district court heavily relied. The division recognized that the intent
of the statute was “to protect hospitals that provide medical services
to an injured person who may not be able to pay but who may later
receive compensation for such injuries which includes the cost of
the medical services provided.” Wainscott, ¶ 29 (emphasis added)
(quoting Rose Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 903 P.2d
15, 16 (Colo. App. 1994)).
¶5 The Wainscott division rejected the plaintiffs’ claim that the
failure of the hospital to disclose to them that it would not bill
Medicare constituted a violation of the Colorado Consumer
2
Protection Act. Affirming the district court’s ruling that the hospital
did not have a duty to inform them that it was going to “bill in a
certain way,” the division observed that under federal law, Medicare
serves as a secondary payer “when another insurer is responsible
for providing primary coverage.” Id. at ¶¶ 66-68; see 42 U.S.C.
§ 1395y(b)(2) (2018). Accordingly, Wainscott recognized that under
federal law, hospitals must bill a tortfeasor’s liability insurer before
billing Medicare. Wainscott, ¶ 71; see 42 C.F.R. § 489.20(g) (2019).
Additionally, Wainscott noted that Medicare will make conditional
payments to the hospital if the liability insurer “has not made or
cannot reasonably be expected to make payment . . . promptly . . .
.” 1 Wainscott, ¶ 70 (quoting 42 U.S.C. § 1395y(b)(2)(B)(i)); see 42
C.F.R. § 411.52(a)(1) (2019). But Wainscott was not interpreting the
1 The Medicare payments are referred to as “conditional” because if
a liability insurer is ultimately found responsible, as demonstrated
by a judgment, settlement, award, payment, etc., any Medicare
payments made to a hospital must be repaid to Medicare by the
liability insurer or the entity that receives payment from the liability
insurer. 42 U.S.C. § 1395y(b)(2)(B)(ii) (2018); 42 C.F.R. § 411.22(2019). And “promptly” is defined as within 120 days after the
earlier of (1) the date a claim is filed with a liability insurer or a
hospital lien is filed or (2) the date the patient is discharged from
the hospital. 42 C.F.R. § 411.50(b) (2019). This timeframe is
referred to as the “promptly period.” Wainscott v. Centura Health
Corp., 2014 COA 105, ¶ 70.
3
language now in the statute, which requires hospitals to bill the
“primary medical payer of benefits” before filing a lien,
§ 38-27-101(1), C.R.S. 2019, nor was it juxtaposing that language
against the federal description of Medicare as a “secondary payer.”
Thus, we do not find Wainscott informative on the statutory
interpretation question now before us.
B. Current Version of Lien Statute
¶6 Seeking to curb the use of liens against accident victims who
could pay their hospital bills through their own insurance, the
Colorado legislature substantially amended the hospital lien statute
in 2015. Ch. 260, sec. 1, § 38-27-101, 2015 Colo. Sess. Laws 981-
82. As amended, and as relevant here, the statute provides:
(1) Before a lien is created, every hospital . . .
which furnishes services to any person injured
as the result of the negligence or other
wrongful acts of another person . . . shall
submit all reasonable and necessary charges
for hospital care or other services for payment
to the property and casualty insurer and the
primary medical payer of benefits available to
and identified by or on behalf of the injured
person, in the same manner as used by the
hospital for patients who are not injured as the
result of the negligence or wrongful acts of
another person, to the extent permitted by state
and federal law.
4
(2) If no payers of benefits are identified for the
injured person due to lack of insurance, a lien
may be created.
....
(7) An injured person who is subject to a lien
in violation of this section may bring an action
in a district court to recover two times the
amount of the lien attempted to be asserted.
....
(9) For purposes of this section, “payer of
benefits” means:
[any of nine categories of insurance providers,
which includes health insurance providers
Medicare and Medicaid]. 2
2 Section 38-27-101(9), C.R.S. 2019, defines “payers of benefits” as
follows:
(a) An insurer;
(b) A health maintenance organization;
(c) A health benefit plan;
(d) A preferred provider organization;
(e) An employee benefit plan;
(f) A program of medical assistance under the
“Colorado Medical Assistance Act” [Medicaid]. .
.;
(g) The children’s basic health plan . . . ;
5
§ 38-27-101 (emphases added).
¶7 There is no question that, under the current version of the
statute, hospitals must bill a patient’s primary private health
insurance provider (such as BlueCross/BlueShield) before filing a
lien. But in this case and in others currently working their way
through Colorado courts, Centura seeks to dodge the pre-billing
requirement as it would apply to Medicare. Arguing that Medicare
is not a “primary” medical payer of benefits because Medicare
defines itself as a secondary payer in cases of wrongful injury,
Centura seeks to recover the full amount of its hospital bills from
accident victims through filing a lien, rather than the discounted
amount that Medicare would pay if it were billed. We reject the
notion that the General Assembly intended the 2015 amendments
to create such a loophole.
II. Factual and Procedural History
(h) Any other insurance policy or plan; or
(i) Any other benefit available as a result of a
contract entered into and paid for by or on
behalf of an injured person.
6
¶8 The following facts are undisputed. Garcia was treated at
Centura-St. Anthony North (the hospital) for injuries sustained in
an automobile accident on April 10, 2017. She told the hospital at
the time of her treatment that Medicare, Medicaid, and Progressive
(her property and casualty insurance carrier) were her insurers.
Centura’s agent billed Progressive four days later and was informed
that Garcia’s policy did not cover medical care.3 Less than a month
after Garcia’s hospital visit, Centura filed a lien against her for
$2170.35, without first billing Medicare. On May 24, Centura
notified Garcia that the charges would not be billed to Medicare or
Medicaid at that time.
¶9 In July, exercising the right of action granted by section
38-27-101(7), Garcia filed a complaint against Centura, individually
and on behalf of a class of others similarly situated, seeking, as
relevant here, an award of twice the amount of the hospital lien(s)
asserted.
3The parties dispute whether the hospital also billed the at-fault
party’s liability insurer, but we conclude that dispute is not
material to our decision.
7
¶ 10 In September, Centura released the lien and moved to dismiss
Garcia’s claims. 4 Garcia cross-moved for summary judgment. The
district court ruled in favor of Centura on both motions, finding a
potential conflict between section 38-27-101 and federal law and
thus narrowly interpreting the term “primary medical payer of
benefits” to exclude Medicare and Medicaid.
III. Standard of Review
¶ 11 We review de novo the district court’s grant of Centura’s
motion to dismiss and its denial of Garcia’s motion for summary
judgment. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.
2004). We begin by interpreting the hospital lien statute, as
amended in 2015, de novo. See Colo. Med. Bd. v. McLaughlin, 2019
CO 93, ¶ 22. In doing so, we first consider whether the General
Assembly intended Medicare to be a “primary medical payer of
benefits” as applied to Garcia under the statute, and we conclude
that it did. We then consider the consequences of that
4The record does not reveal why Centura released the lien.
Centura eventually billed Medicare on October 20 — 193 days after
Garcia was treated at the hospital.
8
interpretation, including whether requiring Centura to bill Medicare
is “permitted by state and federal law.” § 38-27-101(1).
IV. Interpreting the Hospital Lien Statute
¶ 12 “Our fundamental responsibility in interpreting a statute is to
give effect to the General Assembly’s purpose or intent in enacting
the statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To
effect that intent, we look first to the statute’s plain language,
construing words and phrases “according to grammar and common
usage” and considering the statute as a whole. Jefferson Cty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010).
¶ 13 If the statute lends itself to reasonable alternative
constructions, “a court may apply other rules of statutory
construction and look to pertinent legislative history to determine
which alternative construction is in accordance with the objective
sought to be achieved by the legislation.” People v. Terry, 791 P.2d
374, 376 (Colo. 1990).
¶ 14 We presume that the General Assembly intended a just and
reasonable result and that “[p]ublic interest is favored over any
private interest.” § 2-4-201(1)(c), (e), C.R.S. 2019.
A. Plain Language
9
¶ 15 Here, based on the plain language in subsections (1) and (9) of
section 38-27-101, and because the General Assembly used the
conjunctive “and” in subsection (1), we conclude that the General
Assembly intended to require hospitals to bill at least two insurers,
when they are identified by the injured person, before filing a lien:
(1) a property and casualty insurer (liability insurer) and (2) a
patient’s primary medical payer of benefits. “Primary medical payer
of benefits” is not a defined term in the statute. However, “payer of
benefits” is defined in the statute, and the descriptor “medical”
narrows that list to medical or health insurers — not liability
insurers. See § 38-27-101(9).
¶ 16 A patient’s “primary” health insurer is, according to common
usage, the first or principal health insurer to be billed for medical
treatments. See Merriam-Webster Dictionary,
https://perma.cc/R9FU-28FF (defining “primary” as “first in order
of time” or “of first rank”). When a patient is insured by only
Medicare and Medicaid, Medicare is the patient’s primary health
insurance. See § 25.5-4-300.4, C.R.S. 2019 (“It is the intent of the
general assembly that medicaid be the last resort for payment . . .
and that all other sources of payment are primary to medical
10
assistance provided by medicaid.”). It is undisputed that Medicare
is Garcia’s primary health insurance.5 It follows that, under the
plain language of the statute, when Medicare is the patient’s
primary health insurer, the General Assembly intended hospitals to
bill Medicare before filing a lien against the patient.
¶ 17 We recognize that a division of this court recently reached a
different conclusion in Harvey v. Centura Health Corp. & Catholic
Health Initiatives, 2020 COA 18. In that case, the division viewed
the term “primary” through the lens of federal Medicare law and
concluded that the General Assembly intended to limit a hospital’s
pre-lien billing requirements when a patient injured as a result of
negligence of another person is a Medicare beneficiary. The division
considered the statute to be unambiguous and did not consider the
legislative history. 6
¶ 18 Given that two divisions of this court deduce alternative
constructions from the plain language of the statute, we look to the
5 Medicare is the federal health insurance program for those who
qualify due to age, disability, or disease. See U.S. Dep’t of Health &
Human Servs., Ctrs. For Medicare & Medicaid Servs., What’s
Medicare?, https://perma.cc/8EZL-322Y.
6 We note that Harvey’s case differed from Garcia’s in that Harvey’s
auto insurance policy included medical coverage.
11
evolution of the language of the statute to determine which
alternative construction is in accord with the legislature’s objective.
See Three Bells Ranch Assocs. v. Cache La Poudre Water Users
Ass’n, 758 P.2d 164, 172 (Colo. 1988) (noting that successive drafts
of a bill may aid in determining legislative intent). We also consider
the consequences of our construction. See Martin, 27 P.3d at 851.
B. Legislative History
¶ 19 At the outset, we observe that nothing in the legislative history
suggests that the General Assembly intended the word “primary” to
be interpreted as it is used in the federal Medicare secondary payer
provisions. In fact, we find no indication that the legislature
intended to exclude Medicare beneficiaries from the prerequisite
health insurance billing requirement for a hospital lien. For these
reasons, and because the federal definition of Medicare as a
“secondary payer” does not control the meaning of the statute’s
phrase “primary medical payer of benefits,” we disagree with the
analysis in Harvey.
¶ 20 On April 9, 2015, Colorado Republican Senator Bill L. Cadman
and Democratic Representative Dickey Lee Hullinghorst sponsored
the bill amending the hospital lien statute to “require[] a hospital to
12
submit charges for hospital care and services to a patient’s payer of
benefits, as defined in the bill, before a lien for hospital care is
created.” S.B. 15-265, 70th Gen. Assemb., 1st Reg. Sess., Bill
Summary (Colo. 2015) (as introduced in Senate),
https://perma.cc/XYM5-UPTS. The statute’s nine categories of
“payers of benefits,” listed in footnote 2 above, remained the same
from the bill’s introduction to its final version.
¶ 21 However, as relevant here, the introduced version varied from
the final version as follows:
• In the introduced version, subsection (1) mandated that
“[b]efore a lien is created, [a hospital shall submit
charges] to all payers of benefits available to the injured
person.” Id. § 1 (emphasis added). The subsection did
not specify which payers of benefits were to be billed,
liken the requirement to “the same manner as used by
the hospital” for billing patients who are not wrongfully
injured, or include the language “to the extent permitted
by state and federal law.”
• The language in subsection (2) of the final bill, permitting
a lien if the injured person lacks insurance, did not
13
appear in the introduced version. See S.B. 15-265, 70th
Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as enrolled,
May 14, 2015), https://perma.cc/J2SJ-7GLM.
¶ 22 While the introduced version required pre-lien billing of “all
payers of benefits,” that language was later amended, in the April
21, 2015, version of the bill, to include the principal words at issue
in this case, which specify that hospitals should submit charges to
“the property and casualty insurer and the primary medical payer
of benefits available to and identified by or on behalf of the injured
person, to the extent permitted by state and federal law.” S.B.
15-265, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as
engrossed), https://perma.cc/K2QJ-K49Y. We perceive this change
to be a practical revision to allow for a lien before numerous
insurers had been billed in sequence, and years had passed.
¶ 23 Senator Cadman introduced the April 21 version of the bill to
the full Senate chamber, stating that (1) liens against an injured
person were “egregious”; (2) they were a “second injury” to someone
injured by the wrongful actions of another party; (3) “liens are a
hammer”; and (4) “shouldn’t the lien be the last resort?” He then
asked for an “aye” vote. 2d Reading on S.B. 15-265 before the S.,
14
70th Gen. Assemb., 1st Reg. Sess., https://perma.cc/YT4X-JKCD.
The bill passed in the Senate.
¶ 24 In the House, subsection (1) was further amended in the May
1, 2015, version to include “in the same manner as used by the
hospital for patients who are not injured as the result of the
negligence or wrongful acts of another person,” S.B. 15-265, 70th
Gen. Assemb., 1st Reg. Sess. § 1 (Colo. 2015) (as revised),
https://perma.cc/AM6W-SEF8.
¶ 25 The bill progressed through many iterations before its final
form; yet, the General Assembly did not add language referring
specifically to Medicare in any version of the bill. The legislature
could have clearly distinguished its treatment of private and
government payers, as some states have done, but it did not. 7
Thus, we perceive no indication that the General Assembly intended
7 Alabama and Utah are two such states. See Ala. Code
§ 35-11-371(b)(2) (2019) (providing that hospitals may have a lien
on injured persons “covered by a governmental payor including
Medicare or Medicaid” before billing the payer); Utah Code Ann.
§ 38-7-1(3)(a) (West 2019) (providing that “a hospital may not assert
a lien . . . if the services provided by the hospital are covered by . . .
private health insurance”).
15
to exclude Medicare beneficiaries from the lien protections offered
by the amended statute.8
¶ 26 Rather, we perceive the legislative intent to be clear. The
General Assembly enacted the 2015 amendments to protect insured
accident victims, including Medicare recipients, from hospital liens.
¶ 27 We therefore conclude that under these facts, Medicare is a
“primary medical payer of benefits” under the statute. The
legislative history reveals that our construction is aligned with the
legislature’s objective and favors the public interest. See
§ 2-4-201(1)(e); Terry, 791 P.2d at 376. Accordingly, Medicare must
be billed before a lien is filed, unless such billing is not permitted by
federal law. We conclude, in Part V below, that such billing is
permitted.
C. General Consequences of Our Construction
8 We may have reached a different conclusion for injured persons
with Medicaid as their only health insurance. There was
substantial discussion of Medicaid in the legislative history, and the
amended statute specifically refers to the “Colorado Medical
Assistance Act” (Medicaid) twice. See § 38-27-101(6), (9)(f).
However, because it is undisputed that Garcia’s primary health
insurance is Medicare, we need not address that question.
16
¶ 28 We observe that the original intent of the hospital lien statute,
to protect hospitals’ interest in payment for medical services to
injured persons who may not be able to pay their medical debts, is
not defeated by our construction. See Wainscott, ¶ 29. The covered
hospital costs of Medicare beneficiaries will be paid, by a liability
insurer or by Medicare, if the hospital bills the liability insurer and
Medicare.
¶ 29 We recognize that, in cases of wrongful injury, Medicare
requires hospitals to follow certain billing procedures that may
affect the timing and amount of payments received. Specifically, a
hospital may not bill Medicare until 120 days after it files a claim
with a liability insurer or files a hospital lien, if it can reasonably
expect payment from a liability insurer during that interval. If a
hospital cannot reasonably expect payment during the 120 days, it
can bill Medicare earlier. And certainly, the amount of payments to
hospitals may be affected by our construction. But the General
Assembly’s intent in the amended statute is to protect wrongfully
injured insured people from the further injury of hospital liens —
not to maintain the maximum possible payments for hospitals. See
17
id. at ¶ 21 (“[I]t is the existence of the lien itself that prejudices [the
plaintiffs].”).
¶ 30 The purpose of the hospital lien statute has always been to
preserve “reasonable and necessary” payments to hospitals.
However, the goal of Centura’s billing and lien practices is to
achieve maximum payments — these practices are what the
General Assembly sought to curb in enacting the 2015 version of
the statute.
¶ 31 Under the Medicare rules, and our construction of the
Colorado hospital lien statute, when a wrongfully injured Medicare
beneficiary receives medical treatment at a hospital, the hospital
must first bill the tortfeasor’s liability insurer. Then, if no payment
has been made or can reasonably be expected to be made during
the “promptly period,” (1) it may bill Medicare, at Medicare rates
(giving up the right of action against a liability insurance settlement
or judgment for Medicare-covered services to Medicare); and (2) if it
has billed the property and casualty insurer identified by or on
behalf of the injured person, it may file a lien for services not
covered by Medicare. See U.S. Dep’t of Health & Human Servs.,
Ctrs. For Medicare & Medicaid Servs., Medicare Secondary (MSP)
18
Manual, ch.2, § 40.2B, D, E (2016) (MSP Manual). In any scenario,
the hospital will be paid through liability insurance or by Medicare.
V. Medicare Billing Before/Without a Lien Not Precluded by Law
¶ 32 The district court concluded that requiring Centura to bill
Medicare before creating a lien caused a “potential” conflict with
federal law, and Centura contends that requiring it to first bill
Medicare creates an actual conflict.
¶ 33 The district court found a potential conflict, in part, because
the Medicare statute and regulations effectively preclude a hospital
from filing a lien against a Medicare beneficiary after the hospital
has billed Medicare for its services. The court found that the
General Assembly could not have intended for hospitals to forgo a
lien.
¶ 34 Presuming that it has a right to a hospital lien against
Medicare beneficiaries, and equating “billing” with “creating a lien,”
Centura argues that because Medicare requires a tortfeasor’s
insurance to be billed during the “promptly period,” before billing
Medicare, the hospital lien statute actually conflicts with federal
law. Centura is wrong.
19
¶ 35 We acknowledge that the effect of requiring Centura to bill
Medicare before filing a lien against the patient (for Medicare-
covered services) is that Centura may not subsequently file a lien
against Medicare patients (for those same services). But that result
is “permitted by state and federal law,” and certainly is not
prohibited by federal law. § 38-27-101(1). It is simply an outcome
dictated by the Medicare payment provisions. Unless the hospital
chooses to risk not billing Medicare, the result is that the hospital is
certain to be paid, at least at Medicare rates. This result does not
conflict with the purpose of the hospital lien statute as set forth in
Wainscott.
¶ 36 Centura also argues that our interpretation stands as an
obstacle to the federal purpose of making Medicare a secondary
payer under these circumstances. Centura postulates that a
tortfeasor’s liability insurer might escape liability, and leave
Medicare unreimbursed, because the insurer will not pay a
hospital’s bill absent a lien. We think this concern is unfounded. A
lien is not necessary to a finding of liability. And when a third party
is liable for a Medicare beneficiary’s injuries, Medicare will, by its
own policies, be reimbursed for its payments.
20
¶ 37 When a hospital bills a tortfeasor’s liability insurer without
filing a lien (as it must under Medicare regulations and our
interpretation of state law), either the insurer will pay it, in which
case Medicare is not on the hook; or it will reject the bill because its
insured is not liable, in which case Medicare will have to pay, but
not because the hospital did not have a lien. Or, the liability
insurer will settle with the injured party, who will be obligated to
reimburse Medicare.
¶ 38 Nothing in our interpretation obstructs the federal purpose or
elevates Medicare to a primary payer under those circumstances.
Our interpretation affects only the hospitals’ right to a lien.
A. Colorado May Limit Hospital Liens Against Medicare
Beneficiaries
¶ 39 Hospital liens are creatures of state law, and each state may
establish the boundaries for hospitals’ rights (if any) to a lien.
Colorado has always limited hospitals’ rights to a lien. Before it was
amended, the hospital lien statute provided hospitals a right to a
lien for only reasonable and necessary charges, excluding workers’
compensation cases and charges arising after a judgment or
settlement. The statutory amendments further limited the right to
21
a hospital lien by requiring, as relevant here, prior billing of both
liability insurance and the injured person’s primary health
insurance.
¶ 40 No federal law prevents Colorado from limiting the rights of
hospitals to file a lien against Medicare beneficiaries. In fact, states
may expressly exclude persons covered by Medicare from a hospital
lien statute. See, e.g., Ind. Code § 32-33-4-3(b)(3)(E) (2019) (stating
that the hospital lien statute is not applicable to persons covered by
Medicare). Federal law is clear that “[t]he [Medicare as a secondary
payer] provisions do not create lien rights when those rights do not
exist under State law.” MSP Manual, ch. 2, § 40.2F.
B. Liens Are Not Required for “Billing”
¶ 41 The MSP Manual provides, in a section entitled “Billing Options
and Requirements – Alternative Billing,” that “[g]enerally, providers,
physicians, and other suppliers must bill liability insurance prior to
the expiration of the promptly period rather than bill Medicare.
(The filing of an acceptable lien against a beneficiary’s liability
insurance settlement is considered billing the liability insurance.)”
Id. § 40.2B. Centura argues that this section indicates that
Medicare requires hospitals to file a lien. We disagree.
22
¶ 42 By its plain language, this section requires that hospitals “bill”
liability insurance, and provides that one way the billing
requirement may be satisfied is by filing an “acceptable” lien. As
discussed in Part V.A, liens are creatures of state law and states
define what liens are “acceptable”; we reject the proposition that
Medicare requires states to permit liens against its beneficiaries.
¶ 43 When asked at oral argument whether it could comply with
Medicare regulations by billing the liability insurer, without filing a
lien, Centura merely argued that such billing would be “futile” for
its collections. Even assuming such futility, we perceive no conflict
between our interpretation of the statute and federal law. 9
9In fact, the following example from the Centers for Medicare &
Medicaid Services’ website supports this result:
Joan is driving her car when someone in
another car hits her. Joan has to go to the
hospital. The hospital tries to bill the other
driver’s insurance company. The insurance
company disputes who was at fault and won’t
pay the claim right away. The hospital bills
Medicare, and Medicare makes a conditional
payment to the hospital for health care
services Joan got. When a settlement is
reached with the other driver’s insurance
company, Joan must make sure Medicare gets
repaid for the conditional payment.
23
Accordingly, we reject Centura’s and the district court’s contrary
interpretation.
¶ 44 We recognize, as a practical matter, that hospitals without a
lien are guaranteed to collect medical payments at only Medicare
rates. At the same time, Medicare-insured victims of negligent or
wrongful injury will not suffer the additional injury of a lien, and
they are likely to recover a greater percentage of the liability
coverage available. The latter interests are the ones the General
Assembly sought to protect in amending the hospital lien statute,
while maintaining the original purpose of the hospital lien statute
by permitting immediate liens for uninsured patients. See
§ 38-27-101(2).
VI. Out-of-State Cases
¶ 45 We are not persuaded by the out-of-state cases relied on by
the district court, and by Centura on appeal, that our conclusion
should be different. These cases interpret statutes with different
effects than the Colorado hospital lien statute and in any event are
U.S. Dep’t of Health & Human Servs., Ctrs. For Medicare &
Medicaid Servs., Medicare & Other Health Benefits: Your Guide to
Who Pays First 19 (rev. Dec. 2018), https://perma.cc/KDB3-H73W.
24
not binding precedent on this court. Most importantly, however,
these cases do not conflict with our opinion.
¶ 46 In Joiner v. Medical Center East, Inc., 709 So. 2d 1209, 1209-
10, 1221 (Ala. 1998), the Alabama Supreme Court concluded that
under applicable Medicare law, the hospital had a right “to obtain
full payment of its charges” from the settlement to an injured
Medicare beneficiary, where the hospital did not bill Medicare. That
right is not compromised by this opinion. Only the right to a lien is
affected. Joiner did not involve interpretation of a state law on
hospital liens.
¶ 47 In Parkview Hospital, Inc. v. Roese, 750 N.E.2d 384, 391 (Ind.
Ct. App. 2001), the Indiana Court of Appeals concluded that under
federal law and the state hospital lien statute, after the “promptly
period,” the hospital may choose to (1) submit charges to Medicare
and waive its lien or (2) pursue its claim against a settlement and
waive Medicare reimbursement. That choice remains intact under
our construction of the Colorado version of the statute, but rather
than waiving a lien if it chooses to bill Medicare, the hospital must
withdraw any bill or claim submitted to a liability insurer.
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¶ 48 In Speegle v. Harris Methodist Health System, 303 S.W.3d 32,
37-40 (Tex. App. 2009), the Court of Appeals of Texas invalidated a
portion of the Texas timely billing hospital statute (not the hospital
lien statute) to the extent it required a hospital to bill Medicare
when settlement funds were available. Again, nothing in our
opinion requires a hospital to bill Medicare. Billing Medicare is a
prerequisite only to filing a lien.
VII. Relief
¶ 49 Garcia asks that we reverse the district court’s denial of her
cross-motion for summary judgment and order that the motion be
granted. Usually, the denial of a motion for summary judgment is
not an appealable ruling. See Dep’t of Nat. Res. v. 5 Star Feedlot
Inc., 2019 COA 162M, ¶ 36. However, “when a district court rules
on cross-motions for summary judgment — denying summary
judgment for one party and granting summary judgment for the
other — the judgment is final and we may review the denial.” Id.¶ 50 Here, although Centura couched its motion as a motion to
dismiss under C.R.C.P. 12(b)(5), the motion was properly treated as
a motion for summary judgment because Centura attached
affidavits and exhibits to its motion, see Churchey v. Adolph Coors
26
Co., 759 P.2d 1336, 1339 (Colo. 1988), and the district court
considered these attachments in its order. See Bristol Bay Prods.,
LLC v. Lampack, 2013 CO 60, ¶ 46 (holding that this is “beyond
what is permissible absent conversion to a summary judgment
motion”). Because the district court considered matters outside the
pleadings, it was required to convert the motion to dismiss to a
motion for summary judgment. Id.; see C.R.C.P. 12(b)(5).
¶ 51 Consequently, and because Centura did not come forward
with evidence demonstrating a genuine issue of material fact, we
may direct the entry of judgment against it and in favor of Garcia.
See 5 Star, ¶¶ 36-37.
VIII. Conclusion
¶ 52 We reverse the district court judgment granting Centura’s
motion to dismiss (properly considered a motion for summary
judgment) and denying Garcia’s motion for summary judgment. We
conclude that Garcia was “subject to a lien in violation of [section
38-27-101],” § 38-27-101(7), and we order that summary judgment
be granted as to her individually. We express no opinion as to
“others similarly situated.” The case is remanded for the district
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court to enter judgment in favor of Garcia and award her recovery
in accordance with section 38-27-101(7).
JUDGE FREYRE and JUDGE GROVE concur.
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