IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30378

SHAWN MILLER, ETC

Plaintiff

BATON ROUGE GENERAL MEDICAL CENTER

Intervenor Plaintiff – Appellee

v.

GORSKI WLADYSLAW ESTATE; ET AL

Defendants

JOSE ANGEL ALFARO, JR; GRACIELA MARROQUIN

Intervenor Defendants – Appellants

---------------------------------------------------------------------------------------------------

JOSE ANGEL ALFARO, JR; GRACIELA MARROQUIN

Plaintiffs – Intervenor Defendants – Appellants

v.

BATON ROUGE GENERAL MEDICAL CENTER

Intervenor Plaintiff – Appellee

v.

ALLIED VAN LINES INC; ET AL

Defendants

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-30378

2

Appeal from the United States District Court

for the Western District of Louisiana

Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

EDITH H. JONES, Chief Judge:

Jose Alfaro (“Alfaro”) received emergency medical care at Baton Rouge

General Medical Center (“Baton Rouge General”) after he was injured in a car

accident. This appeal concerns Baton Rouge General’s efforts to get paid for the

medical care it provided Alfaro. The question presented is whether a hospital

that is required by law to provide emergency medical care to an uninsured

patient, who later becomes eligible for Medicaid, may seek to collect paymentfor

the patient’s medical bills by enforcing a lien against a settlement the patient

recovered from a third-party tortfeasor rather than billing Medicaid. The

district court ruled that Baton Rouge General could enforce its lien against

Alfaro’s tort settlement. Alfaro appeals that decision. We affirm.

BACKGROUND

On July 20, 2003, Alfaro was severely burned in an automobile collision

in St. Martin Parish, Louisiana, with an Allied Van Lines, Inc., (“Allied”) truck.

Following the accident, he was flown by helicopter to Baton Rouge General for

emergency medical treatment. At the time of his admission to the hospital,

Alfaro was uninsured and ineligible for Louisiana Medicaid benefits. Baton

Rouge General was required by the Emergency Medical Treatment and Active

Labor Act, 42 U.S.C. § 1395dd, to treat him. Alfaro remained in the hospital

from July 20 until October 31, 2003; the cost for two and a half months’

hospitalization exceeded $1.2 million.

In August 2003, Alfaro and other accident victims filed a federal lawsuit

against Allied and the truck owner seeking damages for their injuries. Baton
No. 07-30378

3

Rouge General obtained a copy of Alfaro’s accident report about a month later.

On October 21, before Alfaro was discharged, the hospital filed a statutory

privilege, i.e., a lien, for recovery of Alfaro’s medical expenses against any

settlement or judgment he recovered from Allied and its insurers (collectively

“Allied”). See LA. REV. STAT. ANN. § 9:4751 et seq. Two months later, Allied’s

attorney indicated to Baton Rouge General his beliefthatit could recover the full

amount of Alfaro’s medical expenses from Allied. He confirmed that Allied had

more than enough insurance coverage to pay the hospital’s lien.

While Alfaro was hospitalized, Baton Rouge General referred him to a

third-party vendor to assist him in seeking supplemental security income (“SSI”)

benefits from the Society Security Administration. When the hospital learned

that he had been approved for SSI benefits, which made him eligible to receive

Medicaid benefits in Louisiana, the hospital informed Alfaro’s attorney that it

would not bill Medicaid for Alfaro’s medical expenses. Nevertheless, out of an

abundance of caution, the hospital sought retroactive Medicaid approval from

the Louisiana Department of Health and Hospitals (“LDHH”), the state

Medicaid agency, for Alfaro’s stay. LDHH approved, but it warned that “an

approval is not a guarantee of the recipients[’s] eligibility [and] [p]ayment on a

claim will only be made when the claim is billed correctly and all conditions for

payment are met.” In the end, Baton Rouge General neither sought from nor

was reimbursed by Medicaid for Alfaro’s expenses.

Baton Rouge General chose instead to pursue its statutory lien against

Alfaro’s settlement or judgment by intervening in Alfaro’s lawsuit against Allied.

In January 2006, Alfaro, his co-plaintiffs, and Allied finalized a $21 million

settlement, with $7 million earmarked for Alfaro. The settlement agreement

does not allocate funds between past medical expenses and other damages, but

it expressly requires Alfaro “to reserve and hold in trust” funds necessary to

satisfy “all known liens, interventions and other claims” until such claims are
No. 07-30378

1 Alfaro’s notice of appeal of the partial summary judgment in favor of Baton Rouge

General was premature because the district court’s order was not a final judgment. The

judgment neither disposed of the claims against all the defendants nor was it certified as a

final judgment pursuant to Federal Rule of Civil Procedure 54(b). Young v. Equifax Credit

Info. Servs., Inc., 294 F.3d 631, 634 n.2 (5th Cir. 2002). Nonetheless, we have jurisdiction over

this appeal because the magistrate judge’s “order would have been appealable if the district

court had certified it pursuant to Rule 54(b) and because the district court did subsequently

(and prior to oral argument herein) dispose of all remaining parties and claims . . . .” Id.

4

validly released and the judicial proceedings asserting such claims are dismissed

with prejudice. It also requires him to defend, indemnify, and hold Allied

harmless from “any claims asserted by anyone against [Allied] to recover for

services rendered or payments made to or on behalf of plaintiffs . . . .” In

accordance with this agreement, Alfaro deposited the full amount claimed by

Baton Rouge General in the registry of the district court.

The hospital moved for partial summary judgment to recover the deposited

settlement funds. Baton Rouge General contended that even though Alfaro

became eligible for Medicaid benefits after he was discharged from the hospital

it was not required to bill Medicaid and indeed was legally compelled to seek

payment from any responsible third party before billing Medicaid. In a crossmotion, Alfaro countered that once he became eligible for Medicaid, the hospital

had to bill Medicaid. He also argued that enforcement of the hospital’s lien

would constitute recovery not from Allied but from Alfaro, a result prohibited by

state and federal mandates. By consent of the parties, a magistrate judge

considered both motions. In a well-written opinion, the judge denied Alfaro’s

motion and granted Baton Rouge General’s motion, awarding it $1,217,368.99

plus interest. Alfaro filed this appeal.1

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, applying the

same legal standard as the district court. Chacko v. Sabre, Inc., 473 F.3d 604,

609 (5th Cir. 2006). Summary judgment is appropriate when the evidence
No. 07-30378

5

demonstrates that “there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

DISCUSSION

Congress established Medicaid in 1965 through Title XIX to the Social

Security Act, 42 U.S.C. § 1396 et seq., “for the purpose of providing federal

financial assistance to States that choose to reimburse certain costs of medical

treatment for needy persons.” Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct.

2671, 2680 (1980). Under this system of “cooperative federalism,” if a state

agrees to establish a Medicaid plan, the federal government agrees to pay a

specified percentage of the total amount the state plan spends on medical

assistance. Id. at 308, 100 S. Ct. at 2683-84. The federal Medicaid statute

defines “medical assistance” as “payment of part or all of the cost of [covered]

care and services . . . .” 42 U.S.C. § 1396d(a). Although participation in the

Medicaid program is entirely voluntary, once a state elects to participate, it must

comply with federal statutory and regulatory requirements. See S.D. ex rel.

Dickson v. Hood, 391 F.3d 581, 585-86 (5th Cir. 2004). Despite these

requirements, “the Medicaid statute gives each state flexibility in designing and

administering its own Medicaid program.” La. Dept. of Health and Hosps. v. Ctr.

for Medicare and Medicaid Servs., 346 F.3d 571, 572 (5th Cir. 2003).

This case concerns federal and state statutes and regulations governing

third-party liability and provider reimbursement under Medicaid. Alfaro

contends that, when he became “eligible” for Medicaid, the hospital was no

longer permitted to pursue a third-party recovery action against Allied, the

tortfeasor—only the State Medicaid agency could do so. Further, he asserts that,

when he became “eligible” for Medicaid, the hospital had no right as a Medicaid

provider to assert its statutory lien against Alfaro’s share of the settlement.

1. Can Baton Rouge General seek third party reimbursement?

For purposes of this section, we assume arguendo that when Alfaro
No. 07-30378

6

became “eligible” for Louisiana Medicaid, whether or not the hospital availed

itself of Medicaid coverage, the Medicaid regime applied to the hospital’s

reimbursement rights.

We first consider whether a state agency alone can pursue third-party

liability claims. “Congress, in crafting the Medicaid legislation, intended that

Medicaid be a ‘payer of last resort.’” Ark. Dept. of Health and Human Servs. v.

Ahlborn, 547 U.S. 268, 291, 126 S. Ct. 1752, 1767 (2006). “This means that all

other available resources must be used before Medicaid pays for the medical care

of an individual enrolled in a Medicaid program.” Caremark, Inc. v. Goetz,

480 F.3d 779, 783 (6th Cir. 2007). Because Medicaid is essentially a “payer of

last resort,”federal law requires “states to implement‘third party liability (TPL)

programs’ which ensure that Federal and State funds are not misspent for

covered services to eligible Medicaid recipients when third parties exist that are

legally liable to pay for those services.’” Wesley Health Care Ctr., Inc., v.

DeBuono, 244 F.3d 280, 281 (2d Cir. 2001) (quoting Medicaid Programs; State

Plan Requirements and Other Provisions Relating to State ThirdParty Liability

Programs, 55 Fed. Reg. 1423, 1423-24 (1990)).

A third party is “any individual, entity or program that is or may be liable

to pay all or part of the expenditures for medical assistance furnished under a

State [Medicaid] plan.” 42 C.F.R. § 433.136. The federal Medicaid statute

requires that each state’s Medicaid agency take measures to find out when third

parties, such as private insurers and Medicare, are legally obliged to pay for

services covered by Medicaid. Wesley Health Care Ctr., 244 F.3d at 281 (citing

42 U.S.C. § 1396a(25)(A)). Each state Medicaid plan must include “a plan . . . for

pursuing claims against such third parties.” Id. If third party liability is found

to exist after the agency has provided medical assistance, the state agency must

seek reimbursement for such assistance. Id. (citing 42 U.S.C. § 1396a(25)(B)).
No. 07-30378

2 CMS is an agency within the U.S. Department of Health and Human Services. Before

July 2001, CMS was known as the Health Care andFinancing Administration (“HCFA”). S.D.

ex rel. Dickson v. Hood, 391 F.3d 581, 586 n.2 (5th Cir. 2004).

7

The Centers for Medicare and Medicaid Services (“CMS”)2 has issued

implementing regulations that outline two methods for handling third party

liability: “cost avoidance” and “pay and chase.” When the probable liability of a

third party is established at the time a claim is filed, the state Medicaid agency

must reject the claim and return it to the provider for a determination of the

amount of third-party liability. 42 C.F.R. § 433.139(b)(1). The state agency

must pay the difference if the third party’s liability does not at least equal the

amountthe provider is entitled to under Medicaid. Id. “This method of payment

is called ‘cost avoiding;’ it entails shifting to the provider the burden of securing

payment from third parties.” Wesley Health Care Ctr., 244 F.3d at 282.

The other method of handling third-party liability is called “pay and

chase.” Under this method, the state Medicaid agency “pays the total amount

allowed under the agency’s payment schedule and then seeks reimbursement

from the liable third party.” Id. (quoting Medicaid Programs; State Plan

Requirements and Other Provisions Relating to State Third Party Liability

Programs, 55 Fed. Reg. 1423, 1425 (1990)). The “pay and chase” method is used

if the probable existence of third party liability cannot be established or third

party benefits are not available to pay the patient’s medical expenses atthe time

a Medicaid claim is filed. See 42 C.F.R. § 433.139(c); 42 U.S.C. § 1396a(a)(25)(B).

The federal regulations permit, or even require,the state Medicaid agency to use

the “pay and chase” method in certain specific circumstances, for example, where

labor, delivery, or postpartum care is involved. See 42 C.F.R. § 433.139(b)(2), (3).

A state Medicaid agency may also use the “pay and chase” method when itis cost

effective to do so and it receives a waiver from CMS. See 42 C.F.R. § 433.139(e).
No. 07-30378

3

(a) . . .

A state plan for medical assistance must–

. . .

(25) provide–

(A) that the State or local agency administering such plan will take all

reasonable measures to ascertain the legal liability of third parties

(including health insurers, self-insured plans, group health plans (as

defined in section 1167(1) of Title 29), service benefit plans, managed

care organizations, pharmacy benefit managers, or otherparties that are

8

Louisiana law complies with these federal mandates. See LA. REV. STAT.

ANN. § 46:446.2. In addition, Louisiana law requires providers to bill other

insurers and third parties that are liable for a patient’s medical expenses before

they bill Medicaid. See LA. REV. STAT. ANN. § 46:437.12 (requiring Medicaid

providers to enter into a provider agreement with the state Medicaid agency that

requires the provider to “[b]ill other insurers and third parties . . . before billing

the [state Medicaid program], if after reasonable inquiry it is known that the

[Medicaid eligible patient] is eligible for payment for health care or related

services from another insurer or person . . . .”).

Alfaro argues thatLouisiana’s requirement conflicts with federal Medicaid

law concerning third-party liability. He contends that the federal Medicaid

scheme “entrusts the right and duty of recovering funds from third parties to the

[state] Medicaid agency—not the health care provider—upon a determination

of eligibility.” We find this argument unconvincing and, therefore, hold that

Louisiana’s law requiring health care providers to bill third-parties before billing

Medicaid does not conflict with federal law.

Alfaro first asserts that the responsibility of seeking reimbursement from

a liable third party is entrusted to the state Medicaid agency, notthe health care

provider. To support his assertion, he cites the federal Medicaid statute’s

mandate that a state Medicaid plan require the state Medicaid agency to “take

all reasonable measures to ascertain the legal liability of third parties . . . to pay

for care and services available under the plan . . . .” 42 U.S.C. § 1396a(a)(25)(A).3
No. 07-30378

by statute, contract, or agreement, legally responsible for payment of a

claim for a health care item or service) to pay for care and services

available under the plan, including–

(i) the collection of sufficient information (as specified by the

Secretary in regulations)to enable the State to pursue claims against

such third parties, with such information being collected at the time

of any determination or redetermination of eligibility for medical

assistance, and

(ii) the submission to the Secretary of a plan (subject to approval by

the Secretary) for pursuing claims against such third parties, which

plan shall be integrated with, and be monitored as a part of the

Secretary’s review of, the State’s mechanized claims processing and

information retrieval systems required under section 1396(r) of this

title.

42 U.S.C. § 1396a(a)(25)(A).

4 Under LA. REV.STAT. ANN. § 46:446.2(C)(1), the LDHH is required to “[u]ndertake all

reasonable measures to ascertain the legal liability of third parties, including the collection of

sufficient information to enable the department to pursue claims against such third parties.”

Further, the law provides that “[t]his information shall be collected at the time of any

determination or redetermination of eligibility for Medicaid.” Id.

9

Louisiana law complies with this provision. LA. REV. STAT. ANN.

§ 46:446.2(C)(1).4 Federal law does not explicitly entrust a state Medicaid

agency with the sole responsibility of seeking reimbursementfrom third parties.

Instead, it requires the agency to (a) collect information about third party

liability so that the agency can pursue a claim against a third party if it needs

to do so and (b) prepare “a plan” for pursuing such claims. 42 U.S.C.

§ 1396a(a)(25)(A)(i), (ii). Nothing in the statute prohibits a state from requiring

a health care provider to bill a third party before it bills Medicaid.

As further support for his argument, Alfaro cites the federal Medicaid

provision stating that if a third party’s liability for a patient’s medical expenses

is found to exist after a state agency has paid a provider’s claim,the agency must

“seek reimbursement for such [medical] assistance to the extent of such legal

liability.” 42 U.S.C. § 1396a(a)(25)(B); see also 42 C.F.R. § 433.139(d)(2).

Critically, the agency’s responsibility to pursue the third party does not come

into effect until after the Medicaid agency has paid a provider’s claim. Congress
No. 07-30378

5

“If the agency has established probable existence of third party liability at the time

the claim is filed, the agency must reject the claim and return it to the provider for a

determination of the amount of liability. The establishment of third party liability takes place

when the agency receives confirmation from the provider or a third party resource indicating

the extent ofthird party liability. When the amount of liability is determined, the agency must

then pay the claim to the extent that payment allowed under the agency’s payment schedule

exceeds the amount of the third party’s payment.” 42 C.F.R. § 433.139(b)(1).

6 Louisiana’s law requiring health care providers to bill third parties before billing

Medicaid mirrors other state laws. See, e.g., Wesley Health Care Ctr., 244 F.3d at 282 (New

York regulations disallow Medicaid reimbursement to Medicaid providers unless the provider

has first “sought reimbursement from liable third parties”); Caremark, 480 F.3d at 784 (under

10

chose notto mandate that a state agency seek reimbursementfrom a liable third

party before it pays a Medicaid claim. Louisiana, therefore, is entirely free to

delegate to a health care provider, rather than the state Medicaid agency, the

obligation to seek reimbursement from a liable third party before it bills

Medicaid.

Next, Alfaro asserts that 42 C.F.R. § 433.139 requires a health care

provider to bill a state Medicaid agency (and submitto whatever reimbursement

limit Medicaid prescribes) as soon as a patient becomes “eligible” for Medicaid.

But § 433.139 does not contain such a requirement. It merely describes the

procedures that a state Medicaid agency must follow if a provider submits a

Medicaid claim to it for reimbursement and a third party is liable for the

patient’s medical expenses. Moreover, this regulation does not prohibit a state

from allocating to the provider the burden of collecting third-party payments

before it bills Medicaid. As mentioned, § 433.139 states that if a provider

submits a Medicaid claim and the probable liability of a third party is

established at the time the claim is filed, the state Medicaid agency must, with

limited exceptions, reject the claim and require the provider to “chase” the third

party. See 42 C.F.R. § 433.139(b).5 Louisiana’s law is entirely consistent with

this regulation: It simply authorizes a provider to collect from a third-party

earlier in the payment process.6
No. 07-30378

Tennessee’s regulations, providers should not bill Medicaid until “other probable third party

resources to the [Medicaid patient] have been collected”); Petition of Maxi Drug, Inc., 915 A.2d

480, 481-82 (N.H. 2006) (statute states that“NH Medicaid is the payor of last resort, therefore,

you are asked to bill any other third party resource(s) prior to submitting to NH Medicaid”);

Atlanticare Med. Ctr. v. Comm’r of Div. of Med. Assistance, 785 N.E.2d 346, 347-48 (Mass.

2003) (citing Massachusetts regulations, which require that “all [Medicaid] providers must

make diligent efforts to obtain payment first from other resources, including personal injury

protection (PIP) payments, so thatthe [Medicaid state agency] will be the payer of last resort”).

11

We conclude that even if Alfaro is deemed a Medicaid patient simply

because of his “eligibility” for coverage, the hospital was within its rights under

Louisiana and federal law to pursue the third-party tortfeasor before it sought

Medicaid reimbursement.

2. Could Baton Rouge General opt out of Medicaid in order to pursue

recovery from the tortfeasor?

We turn now to the issue of provider reimbursement. Alfaro argues that

federal and state statutes and regulations limiting the ability of providers to

obtain reimbursement for their services under Medicaid prohibit Baton Rouge

General from enforcing its hospital lien.

Federal law does not require health care providers to participate in a

state’s Medicaid program. See 42 U.S.C. § 1396a(a)(23) (a state Medicaid plan

must provide that “any individual eligible for medical assistance . . . may obtain

such assistance from any institution, agency, community pharmacy, or person

qualified to perform the service or services required . . . who undertakes to

provide him such services . . . .” (emphasis added)). See Barney v. Holzer Clinic,

Ltd., 110 F.3d 1207, 1211-12 (6th Cir. 1997) (“The extremely detailed federal

Medicaid statute does not require a particular hospital to participate in the

Medicaid program.”). Instead, a health care provider “voluntarily contracts with

[a] state to provide services to Medicaid-eligible patients in return for

reimbursement from the state at . . . specified rates.” Spectrum Health

Continuing Care Group v. Bowling, 410 F.3d 304, 313 (6th Cir. 2005). Even

those health care providers that “do choose to serve patients under Medicaid
No. 07-30378

7 The implementing regulations, 42 C.F.R. § 431.51(b)(1), elaborate that a state

Medicaid plan must provide that “a recipient may obtain Medicaid services from any

institution, agency, pharmacy, person, or organization that is . . . [q]ualified to furnish the

services; and . . . [w]illing to furnish them to that particular recipient.” Id. (emphasis added).

8 Specifically, the provider agreement states: “I agree to accept Medicaid payment for

covered services as paymentin full and not seek additional payment from any recipient for any

unpaid portion of a bill, with the exception of state-funded spend-down Medically Needy

recipients as indicated by the agency’s form 110-MNP or any recipient co-payments as

12

need not accept all such patients.” Barney, 110 F.3d at 1211-12 (citing 42 U.S.C.

§ 1396a(a)(23) and 42 C.F.R. § 431.51(b)(1)).7 Barney adds:

Because the remuneration provided under Medicaid is often

significantly less than that provided by private insurers or

Medicare, health care providers, either in the interest of higher

profits or merely to remain solvent, sometimes limit the number of

Medicaid patients they will accept. So long as these strategies do

not otherwise violate the Medicaid statute or other federal

antidiscrimination laws they are not in themselves prohibited. 

Id. (citation omitted).

What Medicaid does not allow is for a provider who accepts Medicaid

coverage for a patient to recover more than the program’s reimbursement rates

for care. See 42 C.F.R. § 447.15. Moreover, a “state plan must provide that in

the case of an individual who is entitled to medical assistance under [a] State

plan with respect to a service for which a third party is liable for payment, the

person furnishing the service may not seek to collect from the individual (or any

financially responsible relative or representative of that individual) payment of

an amount for that service” if third party liability equals or exceeds the amount

Medicaid will pay. 42 U.S.C. § 1396a(a)(25)(C); see also 42 C.F.R. § 447.20(a).

Louisiana accordingly requires health care providers that wantto participate in

the state’s Medicaid program to agree to “[a]ccept payment from [Medicaid] as

payment in full,” and not to bill or collect “any additional amount from the

recipient or the recipient’s responsible party . . . .” LA. REV. STAT. ANN.

§ 46:437.12(10)(a);8see also LA. REV. STAT. ANN. § 46:446.5(B) (further
No. 07-30378

established by the DHH . . . .”

9 See also Lizer v. Eagle Air Med. Corp., 308 F. Supp. 2d 1006, 1009 (D. Ariz. 2004)

(holding that provider, who has already accepted Medicaid, is prohibited from enforcing a lien

against a third-party tortfeasor to recover its customary fee); Olszewski v. Scripps Health,

69 P.3d 927, 941-42 (Cal. 2003) (invalidating a state statute which authorized a provider to

recover its customary fee through a lien against a judgment or settlement obtained by a

Medicaid beneficiary against a third-party tortfeasor); Pub. Health Trust v. Dade County Sch.

Bd., 693 So. 2d 562, 566 (Fla. Dist. Ct. App.1997) (holding that a state regulation which

13

implementing limitation of recovery from individual third parties above

Medicaid limits).

Alfaro asserts that these limitations prohibit Baton Rouge General from

enforcing its lien against the tort settlement he recovered from Allied.

Specifically, he contends that the hospital’s enforcement of its lien is an

impermissible effort to collect payment from a Medicaid-eligible patient when

a third party, Allied, is liable for the patient’s medical expenses. Baton Rouge

General counters that enforcement of the lien is permissible because it is trying

to recover from Allied, not Alfaro. We assume, without deciding, that under

Louisiana’s hospital lien statute Baton Rouge General by enforcing its lien is

seeking to collect payment from Alfaro rather than Allied.

Alfaro’s central argument is that once a patient becomes “eligible” for

Medicaid a health care provider cannot seek to collect paymentfrom that patient

if a third party is liable for the patient’s medical expenses. This argument,

however, is inconsistent with the voluntary nature ofthe hospital’s participation

in the program. Case law uniformly indicates that the limitations on provider

reimbursement are triggered not when a patient becomes “eligible” for Medicaid,

but when a provider elects to bill and accepts payment from Medicaid for the

services it provides to the patient. See, e.g., Spectrum Health Continuing Care

Group v. Bowling, 410 F.3d 304 (6th Cir. 2005); Evanston Hosp. v. Hauck, 1 F.3d

540 (7th Cir. 1993); Mallo v. Pub. Health Trust of Dade County, 88 F. Supp. 2d

1376 (S.D. Fla. 2000).9
No. 07-30378

permits a provider to recover its customary fee after receiving a Medicaid payment is invalid

under Supremacy Clause); Palumbo v. Myers, 197 Cal. Rptr. 214, 222-23 (Cal. Ct. App. 1983)

(holding that doctor, who had already accepted Medicaid payment, was prohibited from suing

patient to recover his customary fee from settlement recovered from third-party tortfeasor).

14

In particular, the courts have interpreted 42 U.S.C. § 1396a(a)(25)(C),

which provides that a state Medicaid plan must prohibit health care providers

from collecting payment from a patient entitled to Medicaid if a third-party is

liable for the patient’s medical expenses, as a prohibition on “balance billing” and

“substitute billing.” See, e.g., Spectrum, 410 F.3d at 314; Evanston, 1 F.3d at

542. Balance billing occurs when a provider accepts payment from Medicaid and

then seeks to recover from the patientthe balance between that payment and its

customary fee. See Spectrum, 410 F.3d at 314. Substitute billing occurs when

a provider accepts payment from Medicaid and then tries to return the payment

in order to recover its entire customary fee from the patient. See, e.g., Evanston,

1 F.3d at 542. Logically, a provider cannot attempt to engage in “balancing

billing” or “substitute billing” unless it has initially billed Medicaid. Therefore,

the prohibition against these practices is not triggered until a provider bills and

accepts payment from Medicaid for services provided to a Medicaid-eligible

patient.

In Evanston, the Seventh Circuit held that billing and accepting payment

from Medicaid prevented a hospitalfrom later seeking to enforce its hospital lien

against the damages award a patient recovered from a third-party tortfeasor

liable for his medical expenses. 1 F.3d at 542. There, a hospital treated an

uninsured, Medicaid-eligible patient who suffered injuries in an accident. The

hospital billed and accepted paymentfrom Medicaid for the services itfurnished

to him. After receiving the Medicaid payment, which was less than its

customary fee, the hospital served a hospital lien on a personal injury lawsuit

brought on the patient’s behalf against the third party tortfeasor. Evanston

Hospital v. Hauck, No. 92 C 732, 1992 WL 205900, at *1 (N.D. Ill. Aug. 19, 1992)
No. 07-30378

15

(unpublished). Several years later, when the patient won a multimillion dollar

judgment in his personal injury lawsuit, the hospital sought to enforce its lien

against the judgment to recover its full customary fee.

The Seventh Circuit concluded that the hospital could not return the

Medicaid payment and enforce its lien because it had already accepted money

from Medicaid for the services it furnished to the patient. The court, however,

explicitly stated that the hospital could have enforced its lien against the

patient’s damages award if it had not accepted the Medicaid payment:

Evanston Hospital was not “forced” to abandon its right to sue

Hauck; no one coerced the hospital into cashing a $113,424 check

from the taxpayers as partial reimbursement for Hauck’s medical

bills. Rather, the hospital could have simply forsaken Medicaid and

taken its chances that Hauck would somehow come up with the

money to pay the bills himself. By opting for reimbursement from

Medicaid, Evanston Hospital bought certainty. It purchased a

guarantee of partial payment in lieu of possibly full payment or

possibly no payment at all. Risk-averse companies that are owed

money (or which do not want the hassle) make this same deal allthe

time with collection agencies-something secure is traded for a crack

at a higher sum. Evanston Hospital wants out of its agreement with

Medicaid now only because its gamble, in retrospect, was unwise.

Evanston Hospital, 1 F.3d at 542.

The Sixth Circuit reached the same conclusion in Spectrum. In that case,

a health care center treated a patient who had been injured during a botched

surgery. At the time she was admitted to the center, the patient was uninsured

and ineligible for Medicaid. The center agreed to admit her on the condition that

she execute a lien on the proceeds of any settlement or verdict she recovered in

a medical malpractice lawsuit. Five months after the patient was admitted to

the center, she became eligible for Medicaid. Because the center did not know

when, or if, it would recover on its lien, it decided to bill and accept payments

from Medicaid for her medical care. These payments were less than the center’s

customary fees. Three years later, when the patient recovered a settlement from
No. 07-30378

16

a third-party tortfeasor,the center tried to enforce its lien againstthe settlement

to recover the balance between the Medicaid payments it had accepted and its

customary fees.

As in Evanston Hospital, the Sixth Circuit denied recovery because the

center had already accepted Medicaid payments as payment in full and enforcing

the lien would be an attempt to recover from the patient when a third party was

liable for her medical expenses. The court noted, however, that the hospital

could have avoided this result:

Spectrum [the health care center] was not required to seek payment

from Medicaid; instead, Spectrum could have provided its services

in exchange for enforcing its lien, which was the original agreement

between the parties. Having chosen to accept payment from

Medicaid however, Spectrum abandoned all rights to further

recovery of its customary fee from the lien. As we have stated,

Medicaid is a contract between a service provider and the

government, in which the Medicaid recipient is a third-party

beneficiary. By accepting the Medicaid payment, the service

provider accepts the terms of the contract—specifically that the

Medicaid amount is payment in full. If this arrangement is not

acceptable to [service providers], they should not take Medicaid

money in the first instance.

Spectrum, 410 F.3d at 315 (internal quotation marks and citations omitted).

Moreover, the court remarked that “[if the health care center] had not received

Medicaid payments, the lien would be enforceable against [the tort settlement]

as a voluntary agreement entered into by willing parties, even though the

patient was Medicaid-eligible.” Spectrum, 410 F.3d at 316 (citation omitted).

Once the health care center “accepted the Medicaid payment, however, [it] had

been paid in full for the services provided to [the patient]. The mere fact that a

prior voluntary agreement existed is without consequence.” Spectrum, 410 F.3d

at 316 (footnote omitted).

In Mallo v. Public Health Trust of Dade County, 88 F. Supp. 2d 1376 (S.D.

Fla. 2000), the court held that after a hospital accepted payment from Medicaid
No. 07-30378

17

it could not enforce a pre-existing lien against a tort settlement recovered by the

patient. But the court noted that the hospital could have enforced its lien if it

had not accepted payment from Medicaid. Specifically, the court stated that the

federal mandate prohibiting “balance billing,” 42 U.S.C. § 1396a(25)(C),

[f]orc[es] providers to make a calculated choice whether to apply for

Medicaid assistance. Once a health care provider commits to

Medicaid assistance for a patient,the provider is barred from billing

the patient for an amount in excess of the State’s Medicaid

disbursement. By contrast, should the health care provider elect not

to apply for Medicaid assistance, then the provider can charge the

market value of the treatment.

Mallo, 88 F. Supp. 2d at 1386-87 (footnote omitted).

From these cases, itis clear thatthe limitations on a health care provider’s

ability to obtain reimbursement for the services it provides a Medicaid-eligible

patient are not triggered until a provider bills and accepts payment from

Medicaid for those services. If a provider chooses not to bill and accept payment

from Medicaid, then it remains free to seek its entire customary fee from the

patient. Of course, the provider runs the risk of not recovering anything from

the patient because the patient may never have the ability to pay his medical

expenses, or the third party payment may not come to fruition. The federal

Medicaid scheme, however, gives providers the opportunity to make a

“calculated choice” whether to seek reimbursement from Medicaid or from the

patient.

Like Spectrum and Mallo, this case involves a provider that asserted a

hospital lien on any tort settlement or judgment recovered by an indigent patient

before the patient became eligible for Medicaid. Those cases clearly recognized

that a provider could assert its pre-existing hospital lien, even after a patient

became eligible for Medicaid, so long as the provider did not bill and accept

payment from Medicaid. The providers in Spectrum and Mallo were both

precluded from enforcing their pre-existing hospital liens because they chose to
No. 07-30378

18

bill and accept payment from Medicaid. But, in this case, Baton Rouge General

did not bill and accept Medicaid. Instead, it made the “calculated choice” to

enforce its lien rather than bill Medicaid. The fact that Alfaro became eligible

for Medicaid after Baton Rouge General established its lien and after he was

discharged from the hospital does not strip the hospital of its pre-existing lien

against his tort settlement, which is enforceable because Alfaro is in debt to the

hospital for his medical bills. See LA. REV. STAT. ANN. § 9:4751 et seq.

CONCLUSION

If Baton Rouge General had been required to cover Alfaro as a Medicaid

patient, as discussed in Part 1 above, Louisiana validly required the hospital to

engage in "cost avoidance" by pursuing the tortfeasor before billing Medicaid

(and submitting to its reimbursement limits). We hold, consistent with the

caselaw, that Baton Rouge General validly exercised its alternative option to

pursue recovery of its costs exclusively from the tortfeasor rather than from

Medicaid. For the reasons stated, the judgment of the district court is

AFFIRMED.