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Saturday, May 29, 2010

CMS Claims No Statute of Limitations May Exist in a Recovery Action

The Centers for Medicare and Medicaid Services (CMS) have filed a reply brief in US v Strickler, et al, now pending in the US District Court in Alabama, alleging that the government’s recovery action was valid and filed within the six years Statute of Limitations. “The answer is clear: the United States’ claim, which seeks reimbursement based on a statutory right to recover monies conditionally paid by Medicare, is contractual and implied in law. Therefore, the six-year limitations period applies.”

The government states that the question for the question is whether the recovery action falls within a contract express or implied in law or fact, which subjects the United States to the six-year limitations period in § 2415(a), or in tort where a 3 year statute would apply.

Alternatively the government advances the proposition that if the could determines that none of the above categories apply then no statute of limitations would apply. “As noted in the United States’ Omnibus Response (at 20 n.10), if the Court were to decide that this claim falls into none of these categories, then no limitations period applies. See, e.g., United States v. Palm Beach Gardens, 635 F.2d 337, 341 (5th Cir. 1981) (holding that cause of action under the Hill-Burton Act was neither tort nor contract, and therefore the United States could pursue its cause of action at any time).”

Should the six year statitute apply, this it would accrue when, “…MSP claims accrue when the United States can “demonstrate” that a primary plan, or an entity that received money from a primary plan, was “required or responsible” to make payments under a primary plan. 42 U.S.C.§ 1395y(b)(2)(B)(ii) and (iii); see also Glover v. Liggett Group, Inc., 459 F.3d 1304, 1309 (11th Cir. 2006) (noting that defendants have no obligation to reimburse Medicare until the defendants’ responsibility to pay a beneficiary’s expenses has been demonstrated).”