SUMMARY

March 5, 2020

2020COA38

No. 18CA1646, Garcia v. Centura Health Corporation —

Creditors and Debtors — Hospital Liens — Lien for Hospital 

Care

A division of the court of appeals considers whether the

Colorado hospital lien statute permits a lien against a patient when 

Medicare is a wrongfully injured patient’s primary health insurance, 

and the hospital has not billed Medicare. See § 38-27-101, C.R.S. 

2019. The division concludes that (1) the statute requires a 

hospital to bill Medicare before filing a lien; (2) the legislative history 

supports this interpretation; and (3) this interpretation does not 

conflict with federal law.

This decision is contrary to a recent decision by another 

division of the court of appeals. See Harvey v. Centura Health Corp. 

& Catholic Health Initiatives, 2020 COA 18.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA38

Court of Appeals No. 18CA1646

City and County of Denver District Court No. 17CV32645

Honorable Ross B.H. Buchanan, Judge

Jina Garcia,

Plaintiff-Appellant,

v.

Centura Health Corporation,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE RICHMAN

Freyre and Grove, JJ., concur

Announced March 5, 2020

Sawaya, Rose, McClure & Wilhite, P.C., Robert E. Caldwell, Denver, Colorado; 

The Hannon Law Firm, LLC, Kevin S. Hannon, Denver, Colorado, for PlaintiffAppellant

Hall, Render, Heath & Lyman, P.C., Melvin B. Sabey, Denver, Colorado, for 

Defendant-Appellee

Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, 

Colorado for Amicus Curiae Colorado Trial Lawyers Association
1

¶ 1 Under Colorado’s hospital lien statute, section 38-27-101, 

C.R.S. 2019, as amended in 2015, may a hospital place a lien on a 

person (1) who has been injured as a result of negligence or other 

wrongful acts and (2) whose primary health insurance is Medicare, 

without first billing Medicare? We answer “no” because in 

amending the statute, the General Assembly sought to protect 

insured patients from unnecessary liens — not to protect maximum 

payments to hospitals serving insureds.

¶ 2 Consequently, we reverse the district court order dismissing 

the claim of plaintiff, Jina Garcia, that defendant, Centura Health 

Corporation (Centura), violated the hospital lien statute when it 

filed a hospital lien against her before billing her primary health 

insurance. We also reverse the court’s denial of Garcia’s motion for 

summary judgment as to her individually.

I. The Hospital Lien Statute and Medicare

A. Prior Version of Lien Statute

¶ 3 Before 2015, the hospital lien statute provided, as relevant 

here, that “[e]very hospital . . . which furnishes services to any 

person injured as the result of the negligence or other wrongful acts 

of another person . . . shall . . . have a lien for all reasonable and 
2

necessary charges for hospital care upon the net amount payable . . 

. as damages on account of such injuries.” § 38-27-101, C.R.S. 

2014. Liens were limited in that they could not be filed to seek 

unreasonable or unnecessary charges, or any charges incurred 

after a judgment or settlement, or filed against persons covered by 

workers’ compensation; and the lien created under the statute was 

junior to an attorney’s lien.

¶ 4 A division of this court interpreted the statute in the context of 

its purpose and its interaction with federal Medicare in Wainscott v. 

Centura Health Corp., 2014 COA 105, an opinion on which the 

district court heavily relied. The division recognized that the intent 

of the statute was “to protect hospitals that provide medical services 

to an injured person who may not be able to pay but who may later 

receive compensation for such injuries which includes the cost of 

the medical services provided.” Wainscott, ¶ 29 (emphasis added) 

(quoting Rose Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 903 P.2d 

15, 16 (Colo. App. 1994)). 

¶ 5 The Wainscott division rejected the plaintiffs’ claim that the 

failure of the hospital to disclose to them that it would not bill 

Medicare constituted a violation of the Colorado Consumer 
3

Protection Act. Affirming the district court’s ruling that the hospital 

did not have a duty to inform them that it was going to “bill in a 

certain way,” the division observed that under federal law, Medicare 

serves as a secondary payer “when another insurer is responsible 

for providing primary coverage.” Id. at ¶¶ 66-68; see 42 U.S.C. 

§ 1395y(b)(2) (2018). Accordingly, Wainscott recognized that under 

federal law, hospitals must bill a tortfeasor’s liability insurer before 

billing Medicare. Wainscott, ¶ 71; see 42 C.F.R. § 489.20(g) (2019).

Additionally, Wainscott noted that Medicare will make conditional 

payments to the hospital if the liability insurer “has not made or 

cannot reasonably be expected to make payment . . . promptly . . . 

.”1 Wainscott, ¶ 70 (quoting 42 U.S.C. § 1395y(b)(2)(B)(i)); see 42 

C.F.R. § 411.52(a)(1) (2019). But Wainscott was not interpreting the 

 

1 The Medicare payments are referred to as “conditional” because if 

a liability insurer is ultimately found responsible, as demonstrated 

by a judgment, settlement, award, payment, etc., any Medicare 

payments made to a hospital must be repaid to Medicare by the 

liability insurer or the entity that receives payment from the liability 

insurer. 42 U.S.C. § 1395y(b)(2)(B)(ii) (2018); 42 C.F.R. § 411.22

(2019). And “promptly” is defined as within 120 days after the 

earlier of (1) the date a claim is filed with a liability insurer or a 

hospital lien is filed or (2) the date the patient is discharged from 

the hospital. 42 C.F.R. § 411.50(b) (2019). This timeframe is 

referred to as the “promptly period.” Wainscott v. Centura Health 

Corp., 2014 COA 105, ¶ 70. 
4

language now in the statute, which requires hospitals to bill the 

“primary medical payer of benefits” before filing a lien, 

§ 38-27-101(1), C.R.S. 2019, nor was it juxtaposing that language 

against the federal description of Medicare as a “secondary payer.” 

Thus, we do not find Wainscott informative on the statutory 

interpretation question now before us. 

B. Current Version of Lien Statute

¶ 6 Seeking to curb the use of liens against accident victims who 

could pay their hospital bills through their own insurance, the 

Colorado legislature substantially amended the hospital lien statute 

in 2015. Ch. 260, sec. 1, § 38-27-101, 2015 Colo. Sess. Laws 981-

82. As amended, and as relevant here, the statute provides:

(1) Before a lien is created, every hospital . . . 

which furnishes services to any person injured 

as the result of the negligence or other 

wrongful acts of another person . . . shall 

submit all reasonable and necessary charges 

for hospital care or other services for payment 

to the property and casualty insurer and the 

primary medical payer of benefits available to 

and identified by or on behalf of the injured 

person, in the same manner as used by the 

hospital for patients who are not injured as the 

result of the negligence or wrongful acts of 

another person, to the extent permitted by state 

and federal law.
5

(2) If no payers of benefits are identified for the 

injured person due to lack of insurance, a lien 

may be created.

. . . .

(7) An injured person who is subject to a lien 

in violation of this section may bring an action 

in a district court to recover two times the 

amount of the lien attempted to be asserted.

. . . .

(9) For purposes of this section, “payer of 

benefits” means:

[any of nine categories of insurance providers, 

which includes health insurance providers

Medicare and Medicaid].2

 

2 Section 38-27-101(9), C.R.S. 2019, defines “payers of benefits” as

follows: 

(a) An insurer; 

(b) A health maintenance organization; 

(c) A health benefit plan; 

(d) A preferred provider organization; 

(e) An employee benefit plan; 

(f) A program of medical assistance under the 

“Colorado Medical Assistance Act” [Medicaid]. . 

. ; 

(g) The children’s basic health plan . . . ; 
6

§ 38-27-101 (emphases added).

¶ 7 There is no question that, under the current version of the 

statute, hospitals must bill a patient’s primary private health 

insurance provider (such as BlueCross/BlueShield) before filing a 

lien. But in this case and in others currently working their way 

through Colorado courts, Centura seeks to dodge the pre-billing 

requirement as it would apply to Medicare. Arguing that Medicare 

is not a “primary” medical payer of benefits because Medicare 

defines itself as a secondary payer in cases of wrongful injury, 

Centura seeks to recover the full amount of its hospital bills from 

accident victims through filing a lien, rather than the discounted 

amount that Medicare would pay if it were billed. We reject the 

notion that the General Assembly intended the 2015 amendments 

to create such a loophole.

II. Factual and Procedural History

 

(h) Any other insurance policy or plan; or 

(i) Any other benefit available as a result of a 

contract entered into and paid for by or on 

behalf of an injured person.
7

¶ 8 The following facts are undisputed. Garcia was treated at 

Centura-St. Anthony North (the hospital) for injuries sustained in 

an automobile accident on April 10, 2017. She told the hospital at 

the time of her treatment that Medicare, Medicaid, and Progressive

(her property and casualty insurance carrier) were her insurers. 

Centura’s agent billed Progressive four days later and was informed 

that Garcia’s policy did not cover medical care.3 Less than a month 

after Garcia’s hospital visit, Centura filed a lien against her for 

$2170.35, without first billing Medicare. On May 24, Centura 

notified Garcia that the charges would not be billed to Medicare or

Medicaid at that time.

¶ 9 In July, exercising the right of action granted by section 

38-27-101(7), Garcia filed a complaint against Centura, individually 

and on behalf of a class of others similarly situated, seeking, as 

relevant here, an award of twice the amount of the hospital lien(s) 

asserted. 

 

3 The parties dispute whether the hospital also billed the at-fault 

party’s liability insurer, but we conclude that dispute is not 

material to our decision. 
8

¶ 10 In September, Centura released the lien and moved to dismiss 

Garcia’s claims.4 Garcia cross-moved for summary judgment. The 

district court ruled in favor of Centura on both motions, finding a 

potential conflict between section 38-27-101 and federal law and 

thus narrowly interpreting the term “primary medical payer of 

benefits” to exclude Medicare and Medicaid. 

III. Standard of Review

¶ 11 We review de novo the district court’s grant of Centura’s 

motion to dismiss and its denial of Garcia’s motion for summary 

judgment. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 

2004). We begin by interpreting the hospital lien statute, as 

amended in 2015, de novo. See Colo. Med. Bd. v. McLaughlin, 2019 

CO 93, ¶ 22. In doing so, we first consider whether the General 

Assembly intended Medicare to be a “primary medical payer of 

benefits” as applied to Garcia under the statute, and we conclude 

that it did. We then consider the consequences of that 

 

4 The record does not reveal why Centura released the lien. 

Centura eventually billed Medicare on October 20 — 193 days after 

Garcia was treated at the hospital. 
9

interpretation, including whether requiring Centura to bill Medicare 

is “permitted by state and federal law.” § 38-27-101(1).

IV. Interpreting the Hospital Lien Statute

¶ 12 “Our fundamental responsibility in interpreting a statute is to 

give effect to the General Assembly’s purpose or intent in enacting 

the statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To 

effect that intent, we look first to the statute’s plain language, 

construing words and phrases “according to grammar and common 

usage” and considering the statute as a whole. Jefferson Cty. Bd. of 

Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). 

¶ 13 If the statute lends itself to reasonable alternative

constructions, “a court may apply other rules of statutory 

construction and look to pertinent legislative history to determine 

which alternative construction is in accordance with the objective 

sought to be achieved by the legislation.” People v. Terry, 791 P.2d 

374, 376 (Colo. 1990). 

¶ 14 We presume that the General Assembly intended a just and 

reasonable result and that “[p]ublic interest is favored over any 

private interest.” § 2-4-201(1)(c), (e), C.R.S. 2019.

A. Plain Language
10

¶ 15 Here, based on the plain language in subsections (1) and (9) of 

section 38-27-101, and because the General Assembly used the 

conjunctive “and” in subsection (1), we conclude that the General 

Assembly intended to require hospitals to bill at least two insurers,

when they are identified by the injured person, before filing a lien: 

(1) a property and casualty insurer (liability insurer) and (2) a 

patient’s primary medical payer of benefits. “Primary medical payer 

of benefits” is not a defined term in the statute. However, “payer of 

benefits” is defined in the statute, and the descriptor “medical” 

narrows that list to medical or health insurers — not liability

insurers. See § 38-27-101(9).

¶ 16 A patient’s “primary” health insurer is, according to common 

usage, the first or principal health insurer to be billed for medical 

treatments. See Merriam-Webster Dictionary, 

https://perma.cc/R9FU-28FF (defining “primary” as “first in order 

of time” or “of first rank”). When a patient is insured by only 

Medicare and Medicaid, Medicare is the patient’s primary health

insurance. See § 25.5-4-300.4, C.R.S. 2019 (“It is the intent of the 

general assembly that medicaid be the last resort for payment . . . 

and that all other sources of payment are primary to medical 
11

assistance provided by medicaid.”). It is undisputed that Medicare 

is Garcia’s primary health insurance.5 It follows that, under the 

plain language of the statute, when Medicare is the patient’s 

primary health insurer, the General Assembly intended hospitals to 

bill Medicare before filing a lien against the patient. 

¶ 17 We recognize that a division of this court recently reached a 

different conclusion in Harvey v. Centura Health Corp. & Catholic 

Health Initiatives, 2020 COA 18. In that case, the division viewed 

the term “primary” through the lens of federal Medicare law and 

concluded that the General Assembly intended to limit a hospital’s 

pre-lien billing requirements when a patient injured as a result of 

negligence of another person is a Medicare beneficiary. The division 

considered the statute to be unambiguous and did not consider the 

legislative history.6

¶ 18 Given that two divisions of this court deduce alternative 

constructions from the plain language of the statute, we look to the 

 

5 Medicare is the federal health insurance program for those who 

qualify due to age, disability, or disease. See U.S. Dep’t of Health & 

Human Servs., Ctrs. For Medicare & Medicaid Servs., What’s 

Medicare?, https://perma.cc/8EZL-322Y. 6 We note that Harvey’s case differed from Garcia’s in that Harvey’s

auto insurance policy included medical coverage.
12

evolution of the language of the statute to determine which 

alternative construction is in accord with the legislature’s objective. 

See Three Bells Ranch Assocs. v. Cache La Poudre Water Users 

Ass’n, 758 P.2d 164, 172 (Colo. 1988) (noting that successive drafts 

of a bill may aid in determining legislative intent). We also consider 

the consequences of our construction. See Martin, 27 P.3d at 851.

B. Legislative History

¶ 19 At the outset, we observe that nothing in the legislative history 

suggests that the General Assembly intended the word “primary” to 

be interpreted as it is used in the federal Medicare secondary payer 

provisions. In fact, we find no indication that the legislature 

intended to exclude Medicare beneficiaries from the prerequisite 

health insurance billing requirement for a hospital lien. For these 

reasons, and because the federal definition of Medicare as a 

“secondary payer” does not control the meaning of the statute’s 

phrase “primary medical payer of benefits,” we disagree with the 

analysis in Harvey.

¶ 20 On April 9, 2015, Colorado Republican Senator Bill L. Cadman 

and Democratic Representative Dickey Lee Hullinghorst sponsored 

the bill amending the hospital lien statute to “require[] a hospital to 
13

submit charges for hospital care and services to a patient’s payer of 

benefits, as defined in the bill, before a lien for hospital care is 

created.” S.B. 15-265, 70th Gen. Assemb., 1st Reg. Sess., Bill 

Summary (Colo. 2015) (as introduced in Senate),

https://perma.cc/XYM5-UPTS. The statute’s nine categories of 

“payers of benefits,” listed in footnote 2 above, remained the same 

from the bill’s introduction to its final version. 

¶ 21 However, as relevant here, the introduced version varied from 

the final version as follows:

• In the introduced version, subsection (1) mandated that 

“[b]efore a lien is created, [a hospital shall submit 

charges] to all payers of benefits available to the injured 

person.” Id. § 1 (emphasis added). The subsection did 

not specify which payers of benefits were to be billed, 

liken the requirement to “the same manner as used by 

the hospital” for billing patients who are not wrongfully 

injured, or include the language “to the extent permitted 

by state and federal law.”

• The language in subsection (2) of the final bill, permitting 

a lien if the injured person lacks insurance, did not 
14

appear in the introduced version. See S.B. 15-265, 70th 

Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as enrolled, 

May 14, 2015), https://perma.cc/J2SJ-7GLM.

¶ 22 While the introduced version required pre-lien billing of “all 

payers of benefits,” that language was later amended, in the April 

21, 2015, version of the bill, to include the principal words at issue 

in this case, which specify that hospitals should submit charges to 

“the property and casualty insurer and the primary medical payer 

of benefits available to and identified by or on behalf of the injured 

person, to the extent permitted by state and federal law.” S.B. 

15-265, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as 

engrossed), https://perma.cc/K2QJ-K49Y. We perceive this change 

to be a practical revision to allow for a lien before numerous 

insurers had been billed in sequence, and years had passed. 

¶ 23 Senator Cadman introduced the April 21 version of the bill to 

the full Senate chamber, stating that (1) liens against an injured 

person were “egregious”; (2) they were a “second injury” to someone 

injured by the wrongful actions of another party; (3) “liens are a 

hammer”; and (4) “shouldn’t the lien be the last resort?” He then 

asked for an “aye” vote. 2d Reading on S.B. 15-265 before the S., 
15

70th Gen. Assemb., 1st Reg. Sess., https://perma.cc/YT4X-JKCD. 

The bill passed in the Senate.

¶ 24 In the House, subsection (1) was further amended in the May 

1, 2015, version to include “in the same manner as used by the 

hospital for patients who are not injured as the result of the 

negligence or wrongful acts of another person,” S.B. 15-265, 70th 

Gen. Assemb., 1st Reg. Sess. § 1 (Colo. 2015) (as revised), 

https://perma.cc/AM6W-SEF8. 

¶ 25 The bill progressed through many iterations before its final 

form; yet, the General Assembly did not add language referring 

specifically to Medicare in any version of the bill. The legislature

could have clearly distinguished its treatment of private and 

government payers, as some states have done, but it did not.7

Thus, we perceive no indication that the General Assembly intended

 

7 Alabama and Utah are two such states. See Ala. Code 

§ 35-11-371(b)(2) (2019) (providing that hospitals may have a lien 

on injured persons “covered by a governmental payor including 

Medicare or Medicaid” before billing the payer); Utah Code Ann. 

§ 38-7-1(3)(a) (West 2019) (providing that “a hospital may not assert 

a lien . . . if the services provided by the hospital are covered by . . .

private health insurance”). 
16

to exclude Medicare beneficiaries from the lien protections offered 

by the amended statute.8 

¶ 26 Rather, we perceive the legislative intent to be clear. The 

General Assembly enacted the 2015 amendments to protect insured 

accident victims, including Medicare recipients, from hospital liens. 

¶ 27 We therefore conclude that under these facts, Medicare is a 

“primary medical payer of benefits” under the statute. The 

legislative history reveals that our construction is aligned with the 

legislature’s objective and favors the public interest. See 

§ 2-4-201(1)(e); Terry, 791 P.2d at 376. Accordingly, Medicare must 

be billed before a lien is filed, unless such billing is not permitted by 

federal law. We conclude, in Part V below, that such billing is 

permitted.

C. General Consequences of Our Construction

 

8 We may have reached a different conclusion for injured persons 

with Medicaid as their only health insurance. There was 

substantial discussion of Medicaid in the legislative history, and the 

amended statute specifically refers to the “Colorado Medical 

Assistance Act” (Medicaid) twice. See § 38-27-101(6), (9)(f). 

However, because it is undisputed that Garcia’s primary health 

insurance is Medicare, we need not address that question.
17

¶ 28 We observe that the original intent of the hospital lien statute, 

to protect hospitals’ interest in payment for medical services to 

injured persons who may not be able to pay their medical debts, is 

not defeated by our construction. See Wainscott, ¶ 29. The covered 

hospital costs of Medicare beneficiaries will be paid, by a liability 

insurer or by Medicare, if the hospital bills the liability insurer and 

Medicare. 

¶ 29 We recognize that, in cases of wrongful injury, Medicare 

requires hospitals to follow certain billing procedures that may 

affect the timing and amount of payments received. Specifically, a 

hospital may not bill Medicare until 120 days after it files a claim 

with a liability insurer or files a hospital lien, if it can reasonably 

expect payment from a liability insurer during that interval. If a

hospital cannot reasonably expect payment during the 120 days, it 

can bill Medicare earlier. And certainly, the amount of payments to 

hospitals may be affected by our construction. But the General 

Assembly’s intent in the amended statute is to protect wrongfully 

injured insured people from the further injury of hospital liens —

not to maintain the maximum possible payments for hospitals. See 
18

id. at ¶ 21 (“[I]t is the existence of the lien itself that prejudices [the 

plaintiffs].”). 

¶ 30 The purpose of the hospital lien statute has always been to 

preserve “reasonable and necessary” payments to hospitals. 

However, the goal of Centura’s billing and lien practices is to 

achieve maximum payments — these practices are what the 

General Assembly sought to curb in enacting the 2015 version of 

the statute.

¶ 31 Under the Medicare rules, and our construction of the 

Colorado hospital lien statute, when a wrongfully injured Medicare 

beneficiary receives medical treatment at a hospital, the hospital

must first bill the tortfeasor’s liability insurer. Then, if no payment 

has been made or can reasonably be expected to be made during 

the “promptly period,” (1) it may bill Medicare, at Medicare rates 

(giving up the right of action against a liability insurance settlement 

or judgment for Medicare-covered services to Medicare); and (2) if it 

has billed the property and casualty insurer identified by or on 

behalf of the injured person, it may file a lien for services not 

covered by Medicare. See U.S. Dep’t of Health & Human Servs., 

Ctrs. For Medicare & Medicaid Servs., Medicare Secondary (MSP)
19

Manual, ch.2, § 40.2B, D, E (2016) (MSP Manual). In any scenario, 

the hospital will be paid through liability insurance or by Medicare.

V. Medicare Billing Before/Without a Lien Not Precluded by Law

¶ 32 The district court concluded that requiring Centura to bill 

Medicare before creating a lien caused a “potential” conflict with 

federal law, and Centura contends that requiring it to first bill 

Medicare creates an actual conflict. 

¶ 33 The district court found a potential conflict, in part, because 

the Medicare statute and regulations effectively preclude a hospital 

from filing a lien against a Medicare beneficiary after the hospital 

has billed Medicare for its services. The court found that the 

General Assembly could not have intended for hospitals to forgo a 

lien.

¶ 34 Presuming that it has a right to a hospital lien against 

Medicare beneficiaries, and equating “billing” with “creating a lien,” 

Centura argues that because Medicare requires a tortfeasor’s 

insurance to be billed during the “promptly period,” before billing 

Medicare, the hospital lien statute actually conflicts with federal 

law. Centura is wrong.
20

¶ 35 We acknowledge that the effect of requiring Centura to bill 

Medicare before filing a lien against the patient (for Medicarecovered services) is that Centura may not subsequently file a lien 

against Medicare patients (for those same services). But that result 

is “permitted by state and federal law,” and certainly is not 

prohibited by federal law. § 38-27-101(1). It is simply an outcome 

dictated by the Medicare payment provisions. Unless the hospital 

chooses to risk not billing Medicare, the result is that the hospital is 

certain to be paid, at least at Medicare rates. This result does not 

conflict with the purpose of the hospital lien statute as set forth in 

Wainscott. 

¶ 36 Centura also argues that our interpretation stands as an 

obstacle to the federal purpose of making Medicare a secondary 

payer under these circumstances. Centura postulates that a 

tortfeasor’s liability insurer might escape liability, and leave 

Medicare unreimbursed, because the insurer will not pay a 

hospital’s bill absent a lien. We think this concern is unfounded. A 

lien is not necessary to a finding of liability. And when a third party 

is liable for a Medicare beneficiary’s injuries, Medicare will, by its 

own policies, be reimbursed for its payments.
21

¶ 37 When a hospital bills a tortfeasor’s liability insurer without 

filing a lien (as it must under Medicare regulations and our 

interpretation of state law), either the insurer will pay it, in which 

case Medicare is not on the hook; or it will reject the bill because its 

insured is not liable, in which case Medicare will have to pay, but 

not because the hospital did not have a lien. Or, the liability 

insurer will settle with the injured party, who will be obligated to 

reimburse Medicare. 

¶ 38 Nothing in our interpretation obstructs the federal purpose or 

elevates Medicare to a primary payer under those circumstances. 

Our interpretation affects only the hospitals’ right to a lien.

A. Colorado May Limit Hospital Liens Against Medicare 

Beneficiaries

¶ 39 Hospital liens are creatures of state law, and each state may 

establish the boundaries for hospitals’ rights (if any) to a lien. 

Colorado has always limited hospitals’ rights to a lien. Before it was 

amended, the hospital lien statute provided hospitals a right to a 

lien for only reasonable and necessary charges, excluding workers’ 

compensation cases and charges arising after a judgment or 

settlement. The statutory amendments further limited the right to 
22

a hospital lien by requiring, as relevant here, prior billing of both

liability insurance and the injured person’s primary health 

insurance.

¶ 40 No federal law prevents Colorado from limiting the rights of 

hospitals to file a lien against Medicare beneficiaries. In fact, states 

may expressly exclude persons covered by Medicare from a hospital 

lien statute. See, e.g., Ind. Code § 32-33-4-3(b)(3)(E) (2019) (stating 

that the hospital lien statute is not applicable to persons covered by 

Medicare). Federal law is clear that “[t]he [Medicare as a secondary 

payer] provisions do not create lien rights when those rights do not 

exist under State law.” MSP Manual, ch. 2, § 40.2F.

B. Liens Are Not Required for “Billing”

¶ 41 The MSP Manual provides, in a section entitled “Billing Options 

and Requirements – Alternative Billing,” that “[g]enerally, providers, 

physicians, and other suppliers must bill liability insurance prior to 

the expiration of the promptly period rather than bill Medicare.

(The filing of an acceptable lien against a beneficiary’s liability 

insurance settlement is considered billing the liability insurance.)” 

Id. § 40.2B. Centura argues that this section indicates that

Medicare requires hospitals to file a lien. We disagree. 
23

¶ 42 By its plain language, this section requires that hospitals “bill” 

liability insurance, and provides that one way the billing 

requirement may be satisfied is by filing an “acceptable” lien. As 

discussed in Part V.A, liens are creatures of state law and states 

define what liens are “acceptable”; we reject the proposition that 

Medicare requires states to permit liens against its beneficiaries.

¶ 43 When asked at oral argument whether it could comply with 

Medicare regulations by billing the liability insurer, without filing a 

lien, Centura merely argued that such billing would be “futile” for 

its collections. Even assuming such futility, we perceive no conflict 

between our interpretation of the statute and federal law.9 

 

9 In fact, the following example from the Centers for Medicare & 

Medicaid Services’ website supports this result:

Joan is driving her car when someone in 

another car hits her. Joan has to go to the 

hospital. The hospital tries to bill the other 

driver’s insurance company. The insurance 

company disputes who was at fault and won’t 

pay the claim right away. The hospital bills 

Medicare, and Medicare makes a conditional 

payment to the hospital for health care 

services Joan got. When a settlement is 

reached with the other driver’s insurance 

company, Joan must make sure Medicare gets 

repaid for the conditional payment. 
24

Accordingly, we reject Centura’s and the district court’s contrary 

interpretation.

¶ 44 We recognize, as a practical matter, that hospitals without a 

lien are guaranteed to collect medical payments at only Medicare

rates. At the same time, Medicare-insured victims of negligent or 

wrongful injury will not suffer the additional injury of a lien, and 

they are likely to recover a greater percentage of the liability 

coverage available. The latter interests are the ones the General 

Assembly sought to protect in amending the hospital lien statute, 

while maintaining the original purpose of the hospital lien statute 

by permitting immediate liens for uninsured patients. See 

§ 38-27-101(2).

VI. Out-of-State Cases

¶ 45 We are not persuaded by the out-of-state cases relied on by 

the district court, and by Centura on appeal, that our conclusion 

should be different. These cases interpret statutes with different 

effects than the Colorado hospital lien statute and in any event are 

 

U.S. Dep’t of Health & Human Servs., Ctrs. For Medicare & 

Medicaid Servs., Medicare & Other Health Benefits: Your Guide to 

Who Pays First 19 (rev. Dec. 2018), https://perma.cc/KDB3-H73W.
25

not binding precedent on this court. Most importantly, however, 

these cases do not conflict with our opinion. 

¶ 46 In Joiner v. Medical Center East, Inc., 709 So. 2d 1209, 1209-

10, 1221 (Ala. 1998), the Alabama Supreme Court concluded that 

under applicable Medicare law, the hospital had a right “to obtain 

full payment of its charges” from the settlement to an injured 

Medicare beneficiary, where the hospital did not bill Medicare. That 

right is not compromised by this opinion. Only the right to a lien is 

affected. Joiner did not involve interpretation of a state law on 

hospital liens.

¶ 47 In Parkview Hospital, Inc. v. Roese, 750 N.E.2d 384, 391 (Ind. 

Ct. App. 2001), the Indiana Court of Appeals concluded that under 

federal law and the state hospital lien statute, after the “promptly 

period,” the hospital may choose to (1) submit charges to Medicare 

and waive its lien or (2) pursue its claim against a settlement and 

waive Medicare reimbursement. That choice remains intact under 

our construction of the Colorado version of the statute, but rather 

than waiving a lien if it chooses to bill Medicare, the hospital must 

withdraw any bill or claim submitted to a liability insurer. 
26

¶ 48 In Speegle v. Harris Methodist Health System, 303 S.W.3d 32, 

37-40 (Tex. App. 2009), the Court of Appeals of Texas invalidated a 

portion of the Texas timely billing hospital statute (not the hospital 

lien statute) to the extent it required a hospital to bill Medicare 

when settlement funds were available. Again, nothing in our 

opinion requires a hospital to bill Medicare. Billing Medicare is a 

prerequisite only to filing a lien.

VII. Relief

¶ 49 Garcia asks that we reverse the district court’s denial of her 

cross-motion for summary judgment and order that the motion be 

granted. Usually, the denial of a motion for summary judgment is 

not an appealable ruling. See Dep’t of Nat. Res. v. 5 Star Feedlot 

Inc., 2019 COA 162M, ¶ 36. However, “when a district court rules 

on cross-motions for summary judgment — denying summary 

judgment for one party and granting summary judgment for the 

other — the judgment is final and we may review the denial.” Id. 

¶ 50 Here, although Centura couched its motion as a motion to 

dismiss under C.R.C.P. 12(b)(5), the motion was properly treated as 

a motion for summary judgment because Centura attached 

affidavits and exhibits to its motion, see Churchey v. Adolph Coors 
27

Co., 759 P.2d 1336, 1339 (Colo. 1988), and the district court 

considered these attachments in its order. See Bristol Bay Prods., 

LLC v. Lampack, 2013 CO 60, ¶ 46 (holding that this is “beyond 

what is permissible absent conversion to a summary judgment 

motion”). Because the district court considered matters outside the 

pleadings, it was required to convert the motion to dismiss to a 

motion for summary judgment. Id.; see C.R.C.P. 12(b)(5).

¶ 51 Consequently, and because Centura did not come forward 

with evidence demonstrating a genuine issue of material fact, we 

may direct the entry of judgment against it and in favor of Garcia. 

See 5 Star, ¶¶ 36-37. 

VIII. Conclusion

¶ 52 We reverse the district court judgment granting Centura’s 

motion to dismiss (properly considered a motion for summary 

judgment) and denying Garcia’s motion for summary judgment. We 

conclude that Garcia was “subject to a lien in violation of [section 

38-27-101],” § 38-27-101(7), and we order that summary judgment 

be granted as to her individually. We express no opinion as to 

“others similarly situated.” The case is remanded for the district 
28

court to enter judgment in favor of Garcia and award her recovery 

in accordance with section 38-27-101(7). 

JUDGE FREYRE and JUDGE GROVE concur.