the question before this court will have a significant impact on medicare recoveries under the m s p act you happily together with the private no fault and liability insurance communities here seek to take the administrative burden of medicare reimbursement off of their soldiers and shift it to medicare the construction of the statute which was adopted by  by the court in the proceeding below is squarely at odds with the overarching and overriding principle of the m s b act together with the well documented purpose of the claims filing provision it self tell me if if you and then you can get into your statutory argued but if you are right about which clause governs why are you timely at least in so far as the complaint is concerned why did you limitations with respect to the government's right of action and here we've applied it with respect to the private cause of action under three under three thousand nine hundred and five dollars y b three a the reason that this case is timely is because the theory or the claims filing provision is not in fact a limitations period it was an imposed as a limitation upon congress at its own volition for the benefit of the of the private insurance no no i'm assuming what it does it is your right i want to know if you are correct about which clause governs why according to the complaint was your claim or your lawsuit timely as alleged in the complaint and as reflected in  entitlement under the program and then upon making that investigation if it is determined to report that information directly to medicare we allege in the complaint plainly that that was not done here there was no notice ever given  plaintiff's assigner florida health care plus and as a result there would be no basis to bar the claim that's been brought in the proceedings below when did you get notice from any source according to the complaint according to the complaint notice has been notice did not come until november of two thousand and fifteen when based upon our own review of records we were able to identify that this accident had occurred and the potential for a medicare secondary payer act recovery it was only then that a letter was sent to king's way amigo insurance company and in response we received multiple responses one of which was an identification of the settlement agreement which plainly demonstrated the responsibility of the of the defendant in the case and that took at least when when eighteen november of two thousand and fifteen and then you felt member if and filed subsequently in december of two thousand and fifty so how let me ask this how did m s p a find out about kingsland here you know you say you only really got notice in november through your own efforts how did you find out about them and could you have found out about them earlier about the accident or affair well in that it in the question has the question that has has really two parts and has multiple levels as to whether or not we could have and whether or not the statute contemplates that we must in order to bring in order to bring a cause of action with respect to the st question it was a matter of  the plaintiff here m s p claims one l see going back through and requesting accident records and a complete and creating a a system where it could review a body of data that had not previously been synthesised and made available to m a o as in which really was not it was not pretty it was not previously possible upon reviewing that information the potential for the medicare secondary payers situation was was found and the demand and the demand was sent if we look at the actual statutory provisions under which we're operating it's very clear that the payment which was originally made on behalf of the medicare beneficiary between april and july of two thousand and twelve the items services related was immediately conditional upon being made it was by operation of of to be one to be a conditional payment subject to reimbursement and that reimbursement was required by virtue of the by virtue of the settlement agreement and her entered much later the statute places no affirmative obligation upon the m a o to go out to go out and conduct this of an investigation in fact it's just the opposite throughout we see that there are a number of provisions that work together most notably to be i states that upon that the upon demonstration of responsibility by virtue of a judgment  or or settlement payment or other award or for other reasons that have been made available or that have now become apparent to the to the primary plan they have an obligation an absolute obligation to reimburse the proper medicare trust it says likewise under b eight that it shall conduct this investigation and that it shall report so the statutory framework is one intended to take the burden off of medicare where it had rested for so long before and to place it on to where it could properly be absorbed as this court noted in baxter to the private insurance industry to allow them to let them investigate because quite frankly just as noted in in western heritage in april or in march of two thousand and thirteen when things way amigo entered into the settlement that's at issue here they had every opportunity to make a simple inquiry to the medicare beneficiary as to its medicare is as was medicare status and as to whether or not she had an  and whether or not payments had been made and elected to remain in the backdrop as you said your point with respect to whether it is sort of when you found out about i keep calling them kingsland but kings wings way but when you found out about them whether you had an obligation to investigate is with this sort of switch that occurred to take the burden off of medicare put it on the private insurance industry make medicare sort of secondary to the primary insure that that that's why that policy is what dictates sort of the actual  notice provision in the government cause of action statue of limitations that you say you sort of partake of right so it's actual notice not to read what should have known correct correct it's actual notice and it's very clear it's very easy the statute that respect is unambiguous it says under under be under b i and states that this is from that it must be filed within three years of notice as provided under paragraph eight refute of note receipt of notice under paragraph eight in the event what we have alleged clearly in this case is that there was never a receipt of notice under paragraph eight in iraq and as a result our claim was timely and that this is a reasonable way of reading the claims filing what we have under under to you  back to just nuisance question of moment with a little bit of a wrinkle to trigger the three or if you are right which provision governs to trigger the limitations period is the notice have to be from the insurance company in other words if someone walks into your office and says hey this just happened and gives you all the documents but you haven't heard from the person you believe should be responsible for the medicare secondary payment you have receipt of notice under the statute under the statute receipt of no it's an interesting hypothetical but the statute in that in that respect has again been structured to protect medicare it is very clear and that was it a little bit but the but that provision is silent about other notice where no from where the notice has to come from it says than filed not later than three years after the date of the receipt of notice of a settlement judgment award or other payment and it doesn't say where the notice comes from it does it continues pursuant to paragraph eight pursuant to paragraph eight and paragraph eight construct exactly the type of or impose an affirmative obligation of the type of notice that's being referenced so viewed so if they never provide you notice there's you have you could file suit thirty years from now they're still around based upon based upon a reading of the a real complaint are you going to even if you know even if you know that x happened and you're like for litigation reasons we're going to wait five years seven years ten years perhaps under those circumstances could do that perhaps under those circumstances there would be other arguments that would that would mitigate against it but under a you could not you might have a i guess if you have a common law latches argument maybe if that could somehow be read into you but statutorily you would not be time barred statutorily no that's not from the time from when the statue of tapes begins to run on the private cause of action or on the government's cause of action is very is clear and yet in the record this is something that's been this was decided by judge king on the basis of on the face of of the complaint finding that there was no material dispute as to as to notice and as to the application of this particular claims provision right that's that's one of the things that the magistrate judge thought in newark in your favor which was this was not summary judgment this was a motion for judgment on the pleadings where you have to take the complaint as true and draw all reasonable inferences in your client's favor and so his fallback position was at the very least is goes on to the next stage of litigation where you get discovery to find out when there was receipt of notice if at all that's that's correct if that's that's correct and to go back to your to go back to your last question because i recognize that perhaps this view of the statue of a patient may seem overly may seem overly punitive but really it's this you may have you may be right this is it but this is some statutes are just written in a way that it leads to result x even if someone on the street might think that's a weird result so it's  overriding purpose has is very clear that it places the absolute burden of paying for it of paying for items and services whenever possible on a private insurer so really the the the situation should never arise because it is entirely within the settling parties control to avoid the type of circumstances that we have here and to make sure that there is certainty with respect to the application of that statue limitations by complying with the very basic notice requirements that are outline burrito morning or honors morning may have please the court so not to throw you but can i ask you a question will not be able just to clear away some history of the outset so to judge jordan's question to your adversary let's just begin there do you have any basis for disputing that if the claims filing provision is not a stand alone bar and what we're concerned about here is just the statute of limitations that he says is borrowed from the government provision the three year notice based actually limitations that they're filing as timely is that agreed on this record  it's not necessarily agreed on this record your honor i would not give an argument in a part of a separate and that's that's the interesting thing here counsel is excuse me my opponent in the district court in here wants to push your honour's push the argument away from the plane in an ambiguous reading of clause six and with a hold on every runner's concern are you talking about when you talk about clause six are you talking about what i'm calling the claims filing provision here we're just talking about the claims filing provision and whether that's a pretty standalone precondition to suit that's correct or not it ok good in it if i may the the what is the period of time that a claim has to be fought actually filed that's not how the statute was written it's setting aside clause three clause it's if i may go back and if i could just just lay a little bit of a predicate in responding to counsel before i get into my main argument first of all this is this is not the government that's making this argument it's not an m a o making this argument these are purported assamese of m a o s n the medicare sed secondary payer statute was was written was laid out is i'm going to go through giving the government a duty to investigate and act promptly i'm going to go through all the provisions but what we're hearing is that the the government or somebody standing in the shoes of an m a o perhaps can sit on their hands forever but certainly in the we understand important your argument is the fact that the statutory scheme was designed to favor the government right and they are not the government right no that's not my argument your honor the statutory scheme was certainly to favor the government but there's an even handed way in which the statute was was was presented by congress especially with the addition of clause six which means that the government must act promptly an a liability ensure that might have might have obligations related this case the answer the question is yes the converse is not true kingsway migo had no reason to know let me tell you why the police report those are all those are all merits but they are what you but your honor she asked whether it in by the way clause six is not based on notice there the other side reads notice provision in cla that's not there clearly it says that the government must request payment within three years from the date of rendering of the item or service is that what it says where's the word must but the word must point judge newsome judge king addressed this issue a senior district judge king who eminently might add is this building is named after he addressed the fact the question of is this a permissive  statute and he said no that that would read out the requirement altogether the reason the word may is there is that the government may or they may not there's a waiver provision in the medicare secondary pay statute again it could require the government to act promptly and expeditiously and i might add when when the other side says that all the burdens are on primary piers that's that's not true there's even a step these statutes like most are written even handedly there's even handed burdens and obligations but judge king to address your point judge newsom said no if we were to read it as permissive limits and without respect to those employer benefit plans this sub six allows the government to circumvent them in essence so what your point is addressing is that this issue came up in the case of  and the government took the position that we do not have to respect any time limitation periods of any plan and the shalala court said debts that's clearly not that that they invalidated that that's six in response to shalala and determined that we the government doesn't have to give regard to any limitation in a plan however the government  again clause six maces the government does the government have to request payment administratively before it file suit assume it's not a private entity like m s p the government have to seek administrative remedies before it file suit under six i'm not sure that it's a good and minute it's a it's a claims filing period so unlike the statute does it have to does it have to yes i would say we're going to just sue so the the words file a claim is sort of loose nomenclature what it means is that submit a claim for payment that's what's intended in the legislative history bears this out what that means is that government within three years whether we use may or must or what have you has to seek a recovery of those payments within three years but  legislative history cited in in the brief we find it the legislative history your honor just that it plainly sets forth the in the purpose of the provision and that is that this is something the government must follow there's that word must  to three years after a claim is for what that means as a matter of yes after a claim is filed meaning after so in the st instance a patient goes to a hospital for example and the hospital the care in this instance the this particular individual went to jackson memorial hospital and issued a a lien notice upon king's way amigo with a person's name but it didn't mention her her age and the police report i start to get back to the police report mentions this person mentions king's we amigo on the police report what happened here is that the named  king's way may go policy gave his vehicle to another gentleman to sell it not to drive it but he drove it and he committed a hit and run so if he ran from the scene this person who was driving the vehicle wasn't supposed a coverage issue here but he ran from the scene the police reporter make notations notes king's way amigo insurance company probably insurance card in the glove box if you will it mentions this particular part there three individuals  the vehicle that were injured this person was one of them doesn't give a birth date so they had it so the the m a o for whom this company m s p purportedly stands in the shoes had reason to know from the beginning if you get the police report contact jackson memorial hospital in my own pain that bill they have reason to know from the beginning to pursue this claim yes your honor i said forget it forget about the fact that a private email involved what sense would it make for the entire statutory scheme to be such that with respect to the government you've got this hard and fast rule that requires a reimbursement request within three years hard and fast rule within three years of services without respect a notice and then separately a statute limitations that's tied much more flexibly to notice that just makes no sense to me well service was furnished to address your question your honor it's important to know that the statue of limitations in clause three was added later many years later in two thousand and thirteen as part of the smart act clause six was part of the statute added in the balanced budget act of one thousand nine hundred and seven it's set forth a claims limitation period so the government must within the three years request payment and if they complied with that and another party may or may not responsible who they submitted that requests for payment to if they are not responsible then they won't make the payment if they are responsible by later entering into a settlement by the way this is not a pip matter this is a commercial auto policy case but if they later settle the government's fulfilled its obligation by submitting its request for payment within the three years they've followed the claim limitation period and not allowed it to become stale and then when there is demonstrated responsibility according to the allstate case in the in this court a demonstrator responsibility by a settlement or judgment or other means then then that's how you establish responsibility against a primary pier and given the later stage of limitations added in two thousand and thirteen which which your honor made it rather open ended which is that the government has three years from the date of notice whatever that means to file an action so i've got two questions one text will one practical the text will question is this the subsects doesn't just contemplate sort of this shotgun approach of like requests for reimbursement to anyone who might plausibly be out there it really seems to contemplate notices to those who are required or responsible so it seems to contemplate like some some subset some sense that the person to whom the request is made is in fact responsible not just like might plausibly be an insurance company but is in fact responsible and then practically i mean would you want to incentivize this sort of like prophylactic request for reimbursement to like everybody who might be in the in the universe so practically your honor no what practically what you want to do is incentivize the government from the beginning to move and act expeditiously as this is the statute is as worded and written to determine who for example in this specific case jackson the m a o whence they pay that bill in two thousand and twelve shortly after the day of the accident to the mayo pays the bill to jackson memorial hospital they have an under the under the statute under they have a duty to investigate promptly let me let me take you through the same set of questions with the government and in the place of m s p ok same timeline as we oh a government in this case had to satisfy within three years of data service and specifically in this case was not date of service date of data of which the item or service was furnished right right ok so what was the date by and she incurred medical bills through june of two thousand and twelve ok by having to government hires july june of two thousand and fifteen your honor ok thank you by when did the government have to satisfy subsection three so that your honor our argument is that these provision although we're not arguing the stache limitations we're arguing over that of all the dutch king called it a limitation provision whatever them whatever he thought that meant but he called it limitation provision a number of times it is call it but you say you're not arguing it's a limitation not a statute of limitations it is names filing period over the two can be read together your honor that's our argument ok so when other side because when did the government buy when did the government have to act to satisfy with the same timeline we have here subsection three although that's not our argument subsection three i would they learned but if it's not constructive notice if it's when there's a settlement or judgement it's three years from that date i'm not arguing that this cause of action is is not timely under a statue of limitation let the one in time that the government makes a payment in it therefore has constructive notice that someone else should be on the hook and then the three year period for three begins to run on that date i'm arguing  don't know the answer that question i'm arguing they have constructive notice as to clause six submit a request for payment and by the way the regulations support this the regulations for twenty two twenty four statutory construction if you don't mind or you through no go ahead you seem to know a lot about the history of this statute which is i mess in my opinion we wouldn't be here this year and you you explained dreck cause of action yes your honor we're supposed to give effect to every paragraph of a statute if we can is it possible that subrogation rights are the topic of clause six because both refer to a primary plan i'm just asking what is the history of calls for with respect to subrogation rights as opposed to the direct action that the government can bring against the primary insurer your honor clause fo was added in an earlier iteration of the m s p act in one thousand nine hundred and eighty four so so but but if i'm just to to address your point the statutes have been written always they added a clauses to the conditional payment sentence to which is the government may pay even though there's a there's a payment that has been made or arguing that in their briefs that were not bound by clause six and all because of for example the tenet case what they say which they cited too as additional thirty they say which is really forgive me not a political because tenet was a very discrete narrow issue whether an m a o under the private cause of action can go after a medical provider versus a primary plan the courts and no you can't go after medical provider only primary plan what three a's says but most importantly the the the per the purpose of the o it and i wanted to add i mentioned judge king interpretation of the clause six counsel has also cited additional authority from ohio in the case called progressive it where the judge the district court judge took issue with judge king he really exposes the whole permissive aspect of this and i would add that the ohio district court case cites to a case in oklahoma i would ask you to your honor's to please read these high court cites a district court judge in oklahoma in the order case excuse me porter where the judge in oklahoma said the government's reimbursement rights are automatic without the obligation to provide notice and the that judge in oklahoma cites to the regulation for eleven point two one when you go to four hundred and eleven twenty one those are just definitions they say nothing about cla six they don't even speak to the issue so in other words it is basically the oklahoma judge without even citing clause that dispenses with clause six by citing two definitions that don't even address the issue and as a result we've taken you way over your statute has always been written requiring the government to act quickly in expeditiously or risk of waiver and here what we have in this is not the government coming in over three years after requests for payment could be made it's not an m a o coming in it's a purported destiny the ship has sailed the statutes can be read together they have to comply with clause six and if they do so they've selvage their right to bring a cause of action and they haven't haven't done so our arms were dull thank you very much you jordan with respect to one of your with respect to one of your questions as to when was the notice of responsibility here and when is basically the last day that this case could have been that this could have been broad when was this timely or u nder under b i i i the even if even if some of the facts that were brought out by the by the defense were true the bottom line is that the notice runs from the time of the demonstrator responsibility there is no question that the underlying settlement was executed on march th of two thousand and thirteen certainly the certainly the plaintiff a signer in the case could not have had notice of the actual demonstration of responsibility until the settlement had actually been entered into at which point the defendant became a primary plan under the under the act and as a result the cases time would at minimum be timely provide it was filed prior to march th of two thousand and sixteen which  absolutely which absolutely was with respect to with respect to your your question judge wright regarding the history of the of the subrogation right at a paragraph before the subrogation rights were enacted at the same time as the direct right of action and have been interpreted since that time by the secretary as well as the courts as being an entirely separate bundle of rights this is what the this is what to be provides it provides a bundle of rights to the medicare program in order to be able to effect to wait recoveries while at the same time imposing affirmative obligations on the primary plans to comply with their obligations under the act at risk of enforcement as a result judge king erred when he announced this as a limitations period or the imposition of any sort of restriction on medicare's right to recover the only reference to shalal opinion and it's important that this be six grew out as a direct was enacted as a direct response to shalala in the shalal opinion the court at the d c circuit ultimately went determined that a that a regulation and acted by the secretary had overstepped the had overstepped the rule making authority of the secretary by doing away or liberating a plan for the government from any claims filing provision there had been a prior prior decision from the same court from the d when the d c circuit receded from its prior opinion and as a result imposed limitations by virtue of that decision upon medicare and restricted its medicare recovery rights that congress sprung into action and as a result b six was enact the six thus is not a limitations period but it's another ascription of a right to medicare in order to assist it in in protecting the medicare trust that's what this that's what this is about that's what the purpose of the statute is intended to achieve  it's against the and that's the prism through which all of these provisions should be read and in in doing so congress so congress clearly and unequivocally stated that this is intended that under the circumstances medicare is entitled to utilize its subrogation right pursue claims against a a a group health plan which often has very restrictive claims filing periods and it can do so regardless regardless of whether or not the underlying individual or beneficiary ever complied with those with those provisions so congress it can bring its right and it can bring it can bring that it can bring that subrogation claim within three years of the date of the item or service  and it's the language of the statute in the language of the statute as it is important it referenced it references the request for payment and the request for payment in this instance could certainly be a lawsuit under b three there is nothing there's nothing that prevents it  it's the language of the statute the language of the statute is very clear in that respect and in light of shalala and the and the underlying underlying history it's important to put the claims by the provision in its proper context  d that point there is a there is a portion of the congressional budget office report that's taken severely out of context and in the briefing and it has been been pointed to by the defendants as an indication that congress  enacted the b six in order to safeguard the over safeguard the private insurers and it plainly demonstrates when read in full that in fact there was no such there was no such intention the intent the intent of congress was to expand the rights of medicare was to ensure that it had additional time to pursue these types of claims and as a result of that additional time determined that point four billion dollars over five years would be would be would hopefully be saved by the medicare  trust certainly that would not be it was not the intent to save less money by insulating by private insurers by virtue of a claims filing requirement that would be very difficult to comply with i do see that i'm over my time if the court would indulge me i have just eleven last point i don't think that it is it is substantively irrelevant that the plaintiff in this case is not the government and at the st point the the apple e's lead point is indicative of the reason that underlies the statutory interpretation that they've advanced here and they always are entitled to pursue these sorts of recoveries it is they and aggregation like what has been brought by m s p that permits them to level the playing field and pursue