New York Sun readers got two Point of Law posters for the price of one in a Feb. 23 Josh Gerstein piece on a United Seniors suit seeking qui tam reimbursement of Medicare expenses by tobacco companies, quoting both me and Walter. If you think this suit sounds dreadfully similar to a lawsuit the Clinton administration already lost in 2000, you'd be right, and the relevant portion of the statute hasn't changed any, notwithstanding claims to the contrary by the plaintiffs.
(To wit: under 42 U.S.C. �1395y(b)(2)(A) & (3)(A) a private party or the government can seek reimbursement on behalf of Medicare from a primary or self-insured "plan," which, under 42 C.F.R. �411.21, is an "arrangement" for health insurance. Needless to say, a smoker cannot go to Philip Morris and make an arrangement for health insurance, which is why every court to study the issue has thrown out these claims as not substituting for the tort system. See U.S. v. Philip Morris USA, 116 F.Supp.2d 131, 145 (D.D.C.2000). The Grassley amendment discussed in the article is Section 301 of P.L. 108-173, which didn't change the definition of "plan," which is the stumbling block for these lawsuits.)
Charles Jarvis shows charming naivete in the New York Sun when he suggests that his request for a federal district court to open the floodgates of Medicare-reimbursement litigation would be limited to the specific circumstances of tobacco companies. If United Seniors were to prevail on their theory of interpretation, plaintiffs' lawyers would have no hesitation in expanding litigation from Big Tobacco to Big Food, Big Auto, Big Chemical, Big Energy, and Big Pharma.
I'll be debating Jarvis on Fox News' Your World with Neil Cavuto, Tuesday, February 28; the five days between now and then will give me time to think of a sound bite better than "Your lawsuit contradicts 42 C.F.R. �411.21's interpretation of �1395y(b)(3)(A)!"