On May 16, 2023, the Repair Abuses of MSP Payments (RAMP) Act was re-introduced into the U.S. House of Representatives as H.R. 3388 and the U.S. Senate as S. 1607 as part of the current Congressional session (118th Congress). The RAMP Act was introduced into the House by Brad Schneider (D-IL) and Gus Bilirakis (R-FL), and the Senate by Senators Tim Scott (R-SC) and Maggie Hasson (D-NH). As outlined below, the RAMP Act proposes to modify the Medicare Secondary Payer (MSP) Act’s private cause of action, codified at 42 U.S.C. § 1395y(b)(3)(A), by eliminating non-group health plans from its application, and limiting its scope to group health plans.
Currently, the MSP’s PCA provision reads as follows:
(3) Enforcement (A) Private cause of action - 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 RAMP Act now proposes to modify the current version of the PCA statute stated above as follows:
SEC. 2. PRIVATE CAUSE OF ACTION FOR DAMAGES IN THE CASE OF A GROUP HEALTH PLAN WHICH FAILS TO PROVIDE FOR PRIMARY PAYMENT OR APPROPRIATE REIMBURSEMENT. Section 1862(b)(3)(A) of the Social Security Act (42 6 U.S.C. 1395y(b)(3)(A)) is amended by striking ‘‘primary plan’’ and inserting ‘‘group health plan (as defined in 8 paragraph (1)(A)(v))’’
The RAMP Act effort is being led, in part, by the Medicare Advocacy Recovery (MARC) Coalition which, as many will recall, is the same group which was instrumental in securing passage of the Strengthening Medicare and Repaying Taxpayers Act (SMART Act) (P.L. No: 112-242) back in 2012 and, more recently, the Provide Accurate Information Directly Act (PAID Act) (P.L. No. 116-215) in 2021.
MARC’s website contains a post titled “MARC celebrates bicameral and bipartisan introduction of the RAMP Act in Congress” which, in support of the RAMP Act, states, in part, as follows: “While the initial MSP laws were created to ensure Medicare doesn’t pay when another entity is responsible for paying a beneficiary’s claim, the private cause of action never achieved that purpose and has been rendered obsolete by more recent law changes. Since 2007, the MSP statute ensures that every judgment, settlement, and award is reported to Medicare, Medicare Advantage and Part D plans. As such, the private cause of action is no longer necessary. Unfortunately, the private cause of action is preventing beneficiaries from resolving claims, ironically making Medicare the primary payer in cases it should not be.”
The RAMP Act’s proposal, which would eliminate non-group health plans (i.e., workers’ compensation, liability, no-fault, and other plans) from the MSP’s PCA provision, will likely be welcomed by these plans which have been dealing with growing PCA claims over the past several years. While a complete examination into all the various types of PCA actions that have arisen recently in the NGHP context is beyond the scope of this article, one area that has seen noted activity involves Medicare Advantage recovery claims.
Specifically, over the past several years, Medicare Advantage Plans (MAPs), or assignees of these plans, have brought several lawsuits against NGHPs seeking “double damages” under the MSP’s PCA statute for the NGHP’s alleged failure to properly reimburse MAP payments. To date, the United States Circuit Courts of Appeals for the Second, Third, and Eleventh Circuits, in Aetna Life Insurance Company v. Big Y Foods, Inc., 52 F.4th 66 (2nd Cir. October 26, 2022), In re Avandia, 685 F.3d 353 (3rd Cir. 2012), and Humana v. Western Heritage Insurance Co., 832 F.3d 1229 (11th Cir. 2016), respectively, have ruled that the MSP’s PCA statute applies to MAPs allowing them to use this provision to sue insurers for double damages. In addition, several U.S. District Courts have similarly ruled (or strongly indicated) that the PCA statute applies to MAP recovery claims. Of note, the court in two cases awarded “double damages” against the defendant insurer. Outside of the MAP context, the PCA has raised other issues regarding application and scope as discussed, in general, in the endnote to this sentence.
What happens next?
Where the RAMP Act may head next is unknown at the moment. As of this time, H.R. 3388 has been referred to the House Committee on Ways and Means and the House Committee on Energy and Commerce, while S. 1607 has been referred to the Senate Finance Committee. Over the next few months, it is very likely that RAMP Act proponents will seek to garner additional support and co-sponsors for the bill. Going forward, it will be interesting to see what transpires regarding the RAMP Act as it works its way through Congress.
Verisk is closely monitoring developments related to the RAMP Act and will provide future updates as warranted. In the interim, please do not hesitate to contact the author if you have any questions.
 Of note, the version of the RAMP Act introduced as H.R. 3388 and S. 1607 differs from the version of the RAMP Act introduced in the last Congressional term (117th Congress) which proposed to eliminate the PCA statute in its entirety. The prior version of the RAMP Act can be viewed here.
 See, H.R. 3308, Sec. 2 and S. 1607, Sec. 2.
 See, MAO-MSO Recovery II, LLC v. Mercury Insurance, 2018 WL 3357493 (C.D. Calif. May 23, 2018); MAO-MSO Recovery II, LLC v. Farmers Insurance Exchange, 2018 WL 2106467 (C.D. Calif. May 7, 2018); Aetna v. Guerrera, 300 F.Supp.3d 367 (D. Conn. March 13,2018); MAO-MSO Recovery II, LLC v. State Farm, 2018 WL 340021 (C.D. Ill. January 9, 2018); Collins v. Wellcare Healthcare Plans, Inc., 73 F.Supp.3d 653 (E.D. La. 2014); MSP Recovery Claims Series LLC v. Plymouth Rock Assurance Corporation, 2019 WL 3239277 (D. Massachusetts, July 18, 2019); MSP Recovery Claims, Series LLC v. Phoenix Insurance Company, 2019 WL 6770981 (N.D. Ohio, December 12, 2019); MSP Recovery Claims, Series LLC v. Grange Insurance Company, 2019 WL 6770729 (N.D. Ohio, December 12, 2019); MSP Recovery Claims, Series LLC v. Progressive Corporation, 2019 WL 5448356 (N.D. Ohio, September 17, 2019); Humana Ins. Co. v. Bi-Lo, LLC, 2019 WL 4643582 (D. South Carolina, September 24, 2019); Cariten Health Plan, Inc. v. Mid-Century Ins. Co., No.: 2015 WL 5449221(E.D. Tenn. 2015); Humana Ins. Co. v. Farmers Tex. Cnty. Mut. Ins. Co., 95 F.Supp.3d 983 (W.D. Tex. 2014); Humana v. Shrader, 584 B.R. 658 (S.D. Tex. March 16, 2018); Humana Ins. Co. v. Paris Blank LLP, 187 F. Supp.3d 676 (E.D. Va. 2016).
 See, Aetna Life Insurance Company v. Big Y Foods, Inc., 52 F.4th 66 (2nd Cir. October 26, 2022) and Humana v. Western Heritage Insurance Co., 832 F.3d 1229 (11th Cir. 2016).
 On this point, one issue that has resulted in considerable litigation over the years is exactly “who” can sue under the PCA statute given that the text of the PCA is silent on this point. While the federal government is granted the express right to bring a claim under the PCA through another MSP provision (42 U.S.C. § 1395y(b)(2)(B)(iii)) the PCA statute itself provides no indication as to who may bring suit under its provisions. While a complete review of the full collection of cases addressing this question is beyond the scope of this article, it is noted that several courts have ruled that the PCA provision is not a qui tam statute. A qui tam action has been described as an action where “a private plaintiff, known as a “relator,” brings suit on behalf of the government to recover a remedy for a harm done to the government.” See, Wood v. Empire Health Choice, Inc., 574 F.3d 92, 97 (2d Cir. 2009). In this regard, as one court commented, “[n]ot just anyone can wander in off the street and avail themselves of the MSP Act’s private cause of action.” Netro v. Greater Baltimore Medical Center, Inc., 891 F.3d 522, 528 (4th Cir. June 4, 2018). Rather, as another court explained, “the PCA statute merely enables a private party to bring an action to recover from a private insurer only where that private party has itself suffered an injury because a primary plan has failed to make a required payment to or on behalf of it” (authors’ emphasis). Woods v. Empire Health Choice, Inc., 574 F.3d 92, 101 (2d Cir. 2009). See also., In re Avandia Marketing, Sales Practices & Products Liability Litig., 685 F.3d 353 (3d Cir. 2012); ; Stalley ex rel. United States v. Orlando Regional Healthcare Sys., Inc., 524 F.3d 1229 (11th Cir. 2008); Stalley v. Methodist Healthcare, 517 F.3d 911 (6th Cir. 2008); Stalley v. Catholic Health Initiatives, 509 F.3d 517 (8th Cir. 2007); United Seniors Ass'n v. Philip Morris USA, 500 F.3d 19 (1st Cir. 2007); Netro v. Greater Baltimore Medical Center, Inc., 891 F.3d 522 (4th Cir. 2018); and O’Connor v. Mayor and City of Baltimore, 494 F.Supp.2d 372 (D. Maryland, July 19, 2007). Similarly, another court found that “the private right of action provided by 42 U.S.C. § 1395y(b)(3)(A) is not a qui tam statute, and [a plaintiff], who is a volunteer and who lacks any injury in fact, does not have standing to pursue such an action” and, thus, the MSP “allows a private plaintiff to assert his own rights, not those of the government.” Stalley v. Catholic Health Initiatives, 509 F.3d 517, 527 (8th Cir. 2007). In terms of which parties the PCA statute does apply, it is noted that, in general, courts have found that Medicare beneficiaries can sue under the PCA, See e.g., Estate of McDonald v. Indemnity Insurance, 46 F.Supp.3d 712 (W.D. Ky. 2014) and O’Connor v. Mayor and City of Baltimore, 494 F. Supp. 2d 372 (D. Maryland, July 19, 2007), as well as medical providers, see e.g., Michigan Spine and Brain Surgeons, PLLC v. State Farm Mut. Auto. Ins. Co., 758 F.3d 787 (6th Cir. 2013).