Daly D.E. Temchine, a Member of the Firm in the Health Care and Life Sciences and Litigation practices in the Washington, DC office, was quoted by The New York Law Journal on a federal circuit court decision which held that the "Medicare Secondary Payer" ("MSP") statute is not among the few statutes that create qui tam actions.

The article, "No Qui Tam Provision in Medicare Secondary Payer Law, Circuit Says," stated that plaintiff Jack Woods sought to sue on behalf of the government in a challenge of the use of Medicare payments to cover health care that is the responsibility of primary insurers.

The U.S. Court of Appeals for the Second Circuit concluded, in Woods v. Empire Health Choice Inc., that the statute allows suits only where a private party has suffered an injury because the primary payor has allowed Medicare to bear the burden of paying the primary cost of a claim for covered health services received by the private party. The key elements of the decision are: (a) in order for an MSP plaintiff to have standing, the alleged violation of the MSP must involve a claim for services received by the individual plaintiff; and (b) the plaintiff cannot assert claims in a representative capacity. The court held that the plaintiff did not satisfy the first element. The implications of the second element are unclear, but could be understood to suggest that class actions may not be allowed in MSP actions.

Temchine pointed out that the circuit could have decided to affirm the lower court's dismissal on procedural grounds, but instead, the court "decided to attack the qui tam" issue directly, to avoid any confusion in its case law.

Two prior cases, said Temchine, had drawn analogies between the statute and the False Claims Act, "and I think the court just decided to clarify that dicta so that dicta would no longer be potentially troubling in the lower courts."

Daly Temchine and Aime Dempsey, a Senior Attorney in the New York office, represented Empire Health Choice.

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