27 Health Law. 1 (2014-2015)

handle is hein.journals/healaw27 and id is 1 raw text is: 


















Medicare Advantage
Misconceptions Abound ...........1

Chair's Cohmr  ........................  2

A Spoonful of Sugar Makes
the Interviewv Go WVell: Praicticail
Advice for Conducting Custodian
Interviews in the Healthcaire
In du stry ............................................  2






State of .he Section ................26

Ethical Issues Arising in
Heslthcare Fraud Invest igaions
and False Claims Act
Qui r'n Cases ...................... 29

Slicing the Pie: Protecting
Health Plan Subrogation
Rights Post McCutchen ......... 44

Section Calendar......Back Cover


D. Gary Reed, Esq.
Hunman Inc.
Louisville, KY
    There are two dist inc tly different
versions of Medicare Advantage,
    The first is the Medicare Advantage
in which almost 16 million Medicare
beneficiaries --- 30 percent of all Medi-
care beneficiaries - are enrolled. This
is the Medicare Advantage option
authorized by Part C of Tite XVIII of
the Social Security Act and adminis-
tered - down to the finest detail - by
the Centers\ for Medicare & Medic-aid
Services (CMS). Because Medicare
Advantge offers more robust benefits
and better coordination of iedical care
tan Original fee-fo ,r-service Medicare,
it is attractive to many beneficiaries,
    The second fort of Medicare
Adv antage is the one fi ,und in plead-
ings, briefs, and court decisions. This
version finds its mnooring not in the
Medicare statute, nor in the actual
operation of the Medicare Advantage
option. but in other courr decisions
Because this avatar of the bMedic.are
Advantage program exists only in judi -
cial opinions, no Medicare beneficiaries
are enrolled in it:- except those who
have the misfortune of finding then -
selves in court.
    Medicare's managed care option -
as authorized by Medicare Part C --has


been around since 1997. Congress ini-
tialy called this optii n Medicare-
Choice, but renamed it Medicare
Advantage in 2003.2 Litigants in a
case invol]ving Medicare Advantage
may therefc)re be tempted to, offer the
court only an abbreviated explanation
of the Medicare Advantage option.
That t:empt at i ,n may be reinf-crced by
trial court rules that impose page limits
on briefs so short as to make addressing
any but the simplest issues a challenge.
    But many courts have fundamental
misconceptions about rhe Medicare
prograt and about Medicare Advan-
tage in particular. Therefore litigation
cot-insel must assume responsibility for
educating the court about the basics of
the Medicare program and its Medicare
Advantage option. This is especially
true tor counsel -or the Medicare
Advantage plan, as the existing case
law perpetuates several serious miscon-
ceptions rhat usually operate to the
disadvantage of the plan.

Medicare Advantage -
A Brief Overview
    Medicare Advantage is one of
Medicare's two options for hospital and
medical benefitsi The initial provision
in Part C, 42. U.S.C.  1395w-21(a),
makes this clear. It provides that
Medicare beneficiaries may obtain


                                                                                            corntinued on-, page 3
Volumne 27, Number 1,
October 2014


    THI




~AW Y L


MED1)ICAR-?,E ADVANTIAGE
MISCONCEPTIONS ABOUND

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?