TO THE STATUTE STRUCTURE THAT I DESCRIBED EARLIER, I JUST WANTED TO TROOIT TO CITE
TO TWO ADDITIONAL AUTHORITIES, PARTICULARLY THE M C C A CLAIMS VERSUS
KINGS WAY A ME COMPANY DECISION THAT WE CITED IN OUR BRIEF, THE COURT THERE EXPLAINED
ORIGINALLY MEDICARE WAS DEEMED THE "PRIMARY PAYER IN THESE INSTANCES,
MEANING THAT IT PAID FIRST AND PRIVATE INSURERS WERE SECONDARY PAIRS, MEANING THEY
COVERED ANY REMAINED, THAT CHANGED IN 1980, TO CURB THE ARRIVING COST OF
MEDICARE CONGRESS ESTABLISHED THE MEDICARE SECONDARY PAYER ACT WHICH FLIPPED THE
PAYMENT ORDER SUCH THAT PRIVATE INSURERS BECAME THE PRIMARY PAIRS AND MEDICARE
BECAME THE SECONDARY PAYER, IN TERMS OF THE FACT THAT THE LAW ESTABLISHED SKD DAIRY
PAYER ACT, WE CAN LOOK TO THE RECORD THAT ESTABLISHED THAT SECONDARY PAYER
ACT, THE REPORT AS CITED IN OUR BRIEF, ESTABLISHED THAT UNDER PRESENT LAW
MEDICARE IS THE PRIMARY PAYER EXCEPT WHERE AN IS DETERMINED TO BE RESPONSIBLE FOR
PAYMENT OF HOSPITAL SERVICES RECEIVED BY BENEFICIARIES. AND
THEN LASTLY I WOULD POINTER THE COURT TO THE APPELLATE DIVISION DECISION IN LUS
LUST BEE WHERE JUDGE PRESSLER EXPLAINED THAT AT THE TIME THAT THE NEW JERSEY
NO FAULT ACT WAS ENACTED THAT MEDICARE AS A MATTER OF FEDERAL LAW WAS PRIMARY.
JUSTICE PATTERSON: LET ME ASK YOU BEFORE YOU SIT DOWN, MR.
HILLE HAD TALKED ABOUT A SENTENCE ON I THINK IT WAS PAGE 13 OF THE APPELLATE
DIVISION'S DECISION THAT HE SAID HAD SIGNIFICANTLY CHANGED THE LAW, IF I'M
-- 3RDDFNS: YOUR HONOR, THAT WAS 17. JUSTICE
PATTERSON: SORRY, MY HANDWRITING IS NOT VERY GOOD. MR. HILLE:
SORRY FOR THE INTERRUPTION. THE COURT: NO, APPRECIATE IT.
MS. BRADY: I APPRECIATE THAT QUESTION, YOUR HONOR, BECAUSE THAT WAS ONE OF THE
CLEAN UP MATTERS THAT I WANTED TO ADDRESS. I RESPECTFULLY DISAGREE THAT THE
APPELLATE DIVISION DECISION IMPACTS ANY CATEGORY OF MEDICARE BENEFICIARIES OTHER
THAN THE NARROW CATEGORY THAT'S PRESENTED BY THIS CASE AND THAT IS THOSE WHO WERE
INJURED IN MOTOR VEHICLE ACCIDENTS THAT HAPPENED PRIOR TO DECEMBER 5TH,
1980. JUSTICE PATTERSON: AND WHAT IS IT ABOUT THAT LANGUAGE
THAT SUPPORTS YOUR POSITION ON THAT, THE LANGUAGE THAT WAS CITED.
MS. BRADY: WITHIN THE DECISION. JUSTICE PATTERSON: YES, THE LANGUAGE
THAT WAS CITED. MS. BRADY: SO I WOULD POINT YOUR HONOR TO
PAGE 20 OF THE DECISION TALKING ABOUT THE WORKER'S COMP CASES THAT WE'VE
DISCUSSED EARLIER. THE COURT SAYS ALTHOUGH THESE CASES DEAL WITH WORKER'S
COMPENSATION, THE PRACTICAL APPLICATION IS SUSTAINED FOR THOSE SITUATIONS
WHERE THE M.S. P ACT DOES NOT APPLY. SUCH AS HERE WHERE MEK MECOUCH'S ACCIDENT
OCCURRED BEFORE DECEMBER 5TH 1980. AND THEN AGAIN AT THE SAME PAGE PAGE 20,
THE BOTTOM, HOWEVER, AGAIN, WHERE THERE IS NO EXCEPTION TO THE M.S. P ACT, MEDICARE
IS THE SECOND DARE PAYER AND THE PIP INSURER WOULD HAVE TO PAY THE BILL
ACCORDING TO NEW JERSEY NO FAULT FEE SCHEDULES. SO IN OTHER WORDS THE COURT MAKES
A CLEAR DISTINCTION BETWEEN CASES SUCH AS THIS ONE WHERE MEDICARE IS PRIMARY AND
CASES URNTDZ R UNDER THE KURNTSDZ VERSION FRLT STATUTE, THE MEDICARE SECONDARY
PAYER ACT. CHIEF JUSTICE RABNER: TELL US WHAT HAPPENED IN THIS
CASE, BALANCE BILLING, OR BALANCE BILLING IN REVERSE AS THE APP. DIV. SAID.
MS. BRADY: BECAUSE THE FEDERAL STATUTE, THE MEDICARE LIMITING CHARGE STATUTE,
IN THE CASE WHERE MEDICARE IS PRIMARY, PROHIBITS A MEDICARE PARTICIPATING
PROVIDER FROM CHARGING A MEDICARE BENEFICIARY OR ANY OTHER PERSON IN THE AMOUNT
BEYOND THE DEDUCTIBLE AND CO-INSURANCE PROPERLY CHARGED TO THE BENEFICIARY.
CHIEF JUSTICE RABNER: UNDERSTOOD, BUT COOPER THOUGHT YOU WERE THE PRIMARY.
MS. BRADY: THAT'S CORRECT, BUT THAT WAS INCORRECT AS A MATTER OF
LAW. AS WE SAID IN OUR BRIEFS, THE CASE RISES OR FALLS ON THE DETERMINATION OF
WHICH PAYER IS PRIMARY AND THAT'S WHERE THE LAW DIVISION REALLY WENT WRONG
IN THE DECISION BECAUSE THE COURT THERE DECIDED THE CASE AND SAID I DON'T NEED
TO DECIDE WHETHER MEDICARE IS PRIMARY. WE SUBMIT THAT THAT THRESHOLD
DETERMINATION IS FUNDAMENTAL TO DETERMINING HOW THE DIFFERENT LEGAL OBLIGATIONS
PLAY OUT HERE, AND SO IN TERMS OF IMPERMISSIBLE BALANCE BILLING, YOU HAVE
TO ADDRESS DIFFERENT SCENARIOS, BUT THE FIRST SCENARIO IS THEY SENT THE WHOLE BILL
TO SELECTIVE, BUT SINCE MEDICARE IS PRIMARY, THE MEDICARE LIMITING CHARGE
STATUTE PROHIBITED THEM AS A MEDICARE PARTICIPATING PROVIDER FROM DOING
THAT. THEN YOU TURN TO THE LAW DIVISION DECISION, WHICH OBLIGATED SELECTIVE TO
PAY ALL OF THE BILL BUT FOR THE MEDICARE ALLOCATED AMOUNT, THAT TOO IS A
PROHIBITION -- OR IS A VIOLATION OF THE MEDICARE LIMITING CHARGE STATUTE. THERE IS
NO SCENARIO WHERE COOPER CAN KEEP THE MEDICARE PAYMENT AND ALSO COLLECT
THE BALANCE OF THE BILL FROM SELECTIVE. THE MEDICARE LIMITING CHARGE STATUTE CLEARLY
PROHIBITS THAT, AND YET THAT WAS WHAT WAS ORDERED BY THE LAW DIVISION.
JUSTICE PATTERSON: LET ME ASK YOU IF I MAY TO TALK A LITTLE BIT ABOUT WHAT HAPPENED
BEFORE THIS HOSPITALIZATION IN 2016. YOUR CLIENT WAS PAYING PURSUANT TO
THE COURT ORDER OVERALL OF THOSE YEARS, WAS THAT -- WAS THERE A SIGNIFICANT AMOUNT
OF MONEY INVOLVED IN ANY ONE HOSPITALIZATION OVER THAT TIME, OR WAS IT
SIMPLY ROUTINE MEDICAL VISITS AND THINGS LIKE THAT. MS. BRADY:
SO, YOUR HONOR, THE RECORD ONLY CONTAINS LIMITED INFORMATION ABOUT THE PRIOR PAYMENTS
AND THAT IS BECAUSE WE TOOK THE POSITION IN DISCOVERY THAT ONLY THE CHARGES
AS TO THE CURRENT HOSPITALIZATION WERE RELEVANT. JUSTICE
PATTERSON: LET ME ASK IT A DIFFERENT WAY. WHY NOW? WHY IN 2016 DID SELECTIVE
CHANGE ITS VIEW WITH RESPECT TO ITS LIABILITY FOR THIS BENEFICIARY?
MS. BRADY: SO THE ANSWER IS THAT WITH RESPECT TO THAT IT WASN'T
JUST WITH RESPECT TO THIS HOSPITALIZATION, AND THE REASON IS NOT IN THE RECORD,
IT WAS NOT THE SUBJECT OF DISCOVERY, BUT AS OF -- I'M LOOKING -- EXCUSE
ME, I'M LOOKING FOR MY APPENDICES, AS OF DECEMBER 2015, SELECTIVE HAD DETERMINED
THAT IN FACT THE LAW PROVIDED FOR MEDICARE PRIMACY, AND IT ADVISED MR. MECOUCH
OF THAT FACT PRIOR TO THE INSTANT HOSPITALIZATION, AND THE CITE FOR THAT LETTER
IS AT J A-214 AND IT WAS SENT ON DECEMBER 11TH, 2015, SO THAT WAS IN FACT
PRIOR TO THE INSTANT HOSPITALIZATION. JUSTICE PATTERSON: THERE'S
NO EVENT LIKE A CHANGE IN THE REGULATIONS OR THE LAW OR SOMETHING ELSE THAT
CAUSED SELECTIVE TO CHANGE ITS POSITION. MS. BRADY: NO YOUR HONOR.
THE COURT: MISS BRADY, IS THERE ANYTHING ELSE YOU WANTED TO
TOUCH ON BEFORE WE CLOSE. MS. BRADY: MY ONE LAST POINT IS JUST TO
HAR KEN BACK TO MY COLLOQUY WITH JUSTICE SOLOMON EARLIER, AND THAT IS WITH
RESPECT TO THE TIMING OR THE ISSUE OF WHETHER MR. MECOUCH'S DATE OF MEDICARE
ELIGIBILITY MATTERS. WHEN THE MEDICARE SECONDARY PAYER ACT IMPLEMENTING
REGULATIONS WERE ENACTED, I THINK I REFERENCED PREVIOUSLY THAT THEY SPECIFICALLY
CONSIDERED THE IMPORT OF THE EFFECTIVE DATE AND I THINK THE REASONING BEHIND
WHY THEY SUPPLIED THE EFFECTS I HAVE DATE IN THE WAY THAT THEY DID IS SIGNIFICANT
TO THAT PRIOR DISCUSSION, AND SPECIFICALLY, IN THOSE -- IN THE
EXPLANATION OF THE IMPLEMENTING REGULATIONS WHICH WE CITED IN OUR PAPERS, THE
PREDECESSOR TO C M.S. SPECIFICALLY SAID CONGRESS SPECIFIED THAT SECTION 953,
THE M.S. P, WAS TO BE EFFECTIVE ON THE DATE OF ENACTMENT WITH DECEMBER 5TH 1980,
THIS ADMITTED OF TWO INTERPRETATION GOES APPLICATIONS TO FURNISH AFTER THAT
DATE REGARDLESS OF WHEN THE ACCIDENT OCCURRED OR APPLICATIONS RELATED TO SERVICES
OCCURRING ON OR AFTER THAT DATE, AND THIS IS THE KEY POINT THAT I WANT TO MAKE,
IT GOES ON, IN RECOGNITION OF THE PROBLEMS POSED FOR PRIVATE INSURERS BY THE LACK
OF LEAD TIME, WE TOOK THE LATTER MORE LIBERAL APPROACH. AND THAT LED TO THE
CODE 6 FEDERAL REGULATIONS PROVISION THAT INDICATES THAT THE MEDICARE SECOND
DARE PAYER ACT PROVISIONS ONLY APPLY TO ACCIDENTS AFTER DECEMBER 5TH 1980.
JUSTICE LAVECCHIA: I HAVE TWO QUESTIONS, AND LET ME JUST PUT THEM
OUT THERE AND YOU CAN RESPOND THEM IN THE ORDER THAT YOU CHOOSE. WAS THERE ANYTHING
IN THE SELECTIVE POLICY THAT SAID THAT SELECTIVE'S PIP PAYMENTS WOULD BE
SUBORDINATE AND THAT MEDICARE WOULD BE PRIMARY, QUESTION NUMBER 1. AND 2, WHAT IS
THE SIGNIFICANCE OF THE STRUCTURE OF THE COLLATERAL SOURCE RULE BACK IN THE
70'S WHEN THIS CONTRACT OF INSURANCE WAS WRITTEN AND COVERED THIS ACCIDENT FOR
MR. MECOUCH. BACK THEN IN THE 70'S THE COLLATERAL SOURCE RULE STATUTE READ
AS FOLLOWS, THE BENEFITS PROVIDED IN SECTION 4 AND THEN IT CITES THE SUBSECTIONS,
SHALL BE PAYABLE AS LOSS ACCRUES UPON WRITTEN NOTICE OF SUCH LAWS AND WITHOUT
REGARD TO COLLATERAL SOURCES EXCEPT WORKER'S COMP INSURANCE, TEMPORARY
DISABILITY AND MEDICARE SHALL BE DEDUCTED. SO IT'S A LITTLE BIT DIFFERENT THAN
THE MOST RECENT STATUTE, NOT TERRIBLY DIFFERENT, BUT THERE ARE A FEW
LANGUAGE DIFFERENCES THAT SEEM TO EMPHASIZE MORE PAYMENT FIRST BY PIP SUBJECT TO
DEDUCTION BY -- OR BENEFITS COLLECTABLE UNDER MEDICARE. MS.
BRADY: SO TO ANSWER THE FIRST QUESTION, WE WERE NEVER ABLE TO LOCATE THE POLICY
THAT WAS ISSUED TO MR. MECOUCH'S FATHER. JUSTICE LAVECCHIA:
I THOUGHT YOU WERE GOING TO SAY THAT, I WASN'T SURE IF IT WAS MY INABILITY TO
FIND IT IN THE RECORD OR IT'S JUST NOT THERE. MS. BRADY: NO,
WE WERE NOT ABLE TO LOCATE IT AND IN TERMS OF WHAT THAT POLICY DID OR DID NOT
CONTAIN, THERE HAS NEVER BEEN AN ARGUMENT HERE THAT THE POLICY MIGHT NOT
HAVE INCORPORATED THE PROVISIONS OF THE COLLATERAL SOURCE STATUTE, THE CASE HAS BEEN
ARGUED ENTIRELY ON THE PREMISE THAT IN FACT THE POLICY AND THE BENEFITS
IT AFFORDS ARE SUBJECT TO THE PIP STATUTE INCLUDING THE COLLATERAL SOURCE STATUTE.
TO ANSWER THE LATTER QUESTION, THERE'S A LOT OF PIECES OF THE QUOTE, AND
I DON'T HAVE IT IN FRONT OF ME. JUSTICE LAVECCHIA: LET ME READ IT
AGAIN BECAUSE I DO FIND THE LANGUAGE IMPORTANT. THE BENEFITS PROVIDED IN
SECTION 4 SHALL BE PAYABLE AS LOSS ACCRUES UPON WRITTEN NOTICE OF SUCH LOSS AND
WITHOUT REGARD TO COLLATERAL SOURCES, EXCEPT THAT BENEFITS COLLECTABLE UNDER
COMP, TEMPORARY DISABILITY STATUTES AND MEDICARE PROVIDED UNDER FEDERAL LAW SHALL
BE DEDUCTED FROM THE BENEFITS COLLECTABLE UNDER SECTION FOERP. MS.
BRADY: SO I THINK THAT -- JUSTICE LAVECCHIA: THE LANGUAGE THAT CAUGHT
MY ATTENTION WAS SHALL BE PAYABLE AS LOSS ACCRUES WITHOUT REGARD TO COLLATERAL
SOURCES. MS. BRADY: AND IN ANSWER TO THAT QUESTION I WOULD
POINT YOUR HONOR TO THE DECISION IN AND CHEZ -- JUSTICE LAVECCHIA:
WELL AND CHEZ HAD TO LOOK AT THE MOST RECENT VERSION OF THE STATUTE, I'M
LOOKING AT THE VERSION OF THE STATUTE IN PLACE WHEN THE CONTRACT THAT CONTROLS
SELECTIVE'S RELATIONSHIP WITH MR. MECOUCH EXISTED. MS. BRADY:
ABSOLUTELY, YOUR HONOR, AND I THINK THAT THE BEST EXPLANATION IS THAT THE COLLATERAL
SOURCE CLAUSE WITHIN THAT SENTENCE SERVES AS AN EXCEPTION TO THE GENERAL
RULE THAT THE SENATE SETS FORTH, WHICH IS SHALL BE PAYABLE AS LOSS ACCRUES WITHOUT
REGARD TO COLLATERAL SOURCES EXCEPT THAT IN THE CASE WHERE THERE'S A COLLATERAL
SOURCE AVAILABLE. JUSTICE LAVECCHIA: IT SAYS SHALL BE DEDUCTED.
MS. BRADY: IT DOES SAY SHALL BE DEDUCTED AFTERNOON THE APPELLATE
DIVISION DECISION IN LAMBERT EXPLAINS THAT THE SHALL BE DEDUCTED LANGUAGE IS BEST
UNDERSTOOD AS THE BURDEN SHIFTING MECHANISM WHICH NUMEROUS APPELLATE
DIVISION CASES AND THE DECISION, BOTH DECISIONS IN AND CHEZ REINFORCED AS THE
MECHANISM CREATED BY THE COLLATERAL SOURCE STATUTE, IT WAS THE LEGISLATURE'S
WAY OF BOTH LIMITING DOUBLE PAYMENT AND REDUCING THE BURDEN ON THE AUTO INSURANCE
SYSTEM BY MOVING THE BURDEN TO A COLLATERAL SOURCE WHERE AVAILABLE.
AND IN 1997 THAT COLLATERAL SOURCE INCLUDED MEDICARE PROVIDED UNDER FEDERAL LAW
WHICH WAS PRIMARY AT THE TIME AND REMAINS PRIMARY TODAY FOR ACCIDENTS PRIOR TO
DECEMBER 5TH, 1980. JUSTICE ALBIN: WHAT COMPLICATES THIS IN MY
VIEW, GOING BACK TO 1977, LOOKING AT THE COLLATERAL SOURCE RULE, WE DIDN'T
CARE, THE LEGISLATURE DIDN'T CARE WHETHER OR NOT PIP PAID IT FIRST OR SOMEONE ELSE
PAID IT FIRST, AS LONG AS THE PATIENT'S BILL GOT PAID AND THAT'S THE REASON
WHY PIP WAS ABLE TO SUE WORKER'S COMP. THAT ISN'T THE CASE WITH MEDICARE, AND
I DON'T KNOW THAT PIP CAN SUE THE FEDERAL GOVERNMENT, AND THAT'S WHERE THIS PRE
EMPTION ISSUE COMES INTO PLAY THAT IN ORDER TO HARMONIZE THE STATUTE WITH FEDERAL
LAW, YOU CAN'T LET PIP GO FIRST, THIS IS WHERE THE QUESTION IS WHETHER OR NOT
FEDERAL LAW IS SUPREME. CHIEF JUSTICE RABNER: AND AS YOU ANSWER
THE QUESTION I'LL ASK YOU TO WRAP UP YOUR ARGUMENT AS WELL. MS.
BRADY: ABSOLUTELY, YOUR HONOR. THAT POINT IS ACTUALLY WHERE I WOULD CONCLUDE,
IS THAT TO HARMONIZE THE PIP STATUTE WITH FEDERAL LAW, ALTHOUGH THE COLLATERAL
SOURCE RULE DOESN'T SCOMBEFL DESIGNATE AN ORDER OF PAYMENT, HERE THE ONLY ORDER
OF PAYMENT THAT WORKS TO IMPLEMENT THE BENEFIT OF THE COLLATERAL SOURCE,
BURDEN SHIFTING POSITION AND THE DICTATES OF FEDERAL LAW UPON A MEDICARE
PARTICIPATING PROVIDER WHERE MEDICARE IS PRIMARY, IS THE ORDER OF PAYMENT APPROVED
BY THE APPELLATE DIVISION HERE. AND WITH THAT, I'LL WRAP UP. THANK YOU VERY
MUCH, YOUR HONORS. CHIEF JUSTICE RABNER: MS. STRYKER.
SUSAN STRYKER: THANK YOU, YOUR HONORS. I'LL TRY TO BE BRIEF. I KNOW IT'S BEEN
A LONG MORNING AND MY HEAD IS SPINNING ESPECIALLY WERE I HEARD INSURANCE
COMPANIES ARE NOT PERSONS. BUT THE ISSUE RESULT HERE TO REITERATE THE COMMENTS
OF MY COLLEAGUE IS THAT IS MEDICARE, WHICH WAS ADOPTED IN 1965 OR PRIVATE
OR PIP INSURANCE, WHICH WAS ADOPTED IN 1972 PRIMARY PAYER IN THIS CASE. WE HAVE
ATTACHED TO OUR APPELLATE DIVISION BRIEF A CERTIFICATION OF CHRISTINE O'BRIEN
THAT WAS FILED IN FEBRUARY OF 2020 INDICATING THAT THIS ISSUE IS AN ISSUE THAT
IS NOT JUST AN ISSUE IN THIS CASE BUT THERE ARE APPROXIMATELY 150
INDIVIDUALS THAT WERE INJURED IN AUTOMOBILE ACCIDENTS PRIOR TO DECEMBER 5, 1980
THAT ARE STILL RECEIVING MEDICAL CARE AS A RESULT OF THOSE ACCIDENTS. WE SUBMIT
THAT UNDER THE FEDERAL LAW MEDICARE IS THE PRIMARY PAYER AND THE PROBLEM
HERE IS THE DISPARITY OF FEES BECAUSE AT THE TIME MEDICARE WAS ENACTED AND THE
TIME PIP WAS ENACTED NEITHER SYSTEM CONTEMPLATED A FEE SCHEDULE OR FEE
LIMITATIONS. AND SUBSEQUENTLY MEDICARE A SERIES OF FEE CAPS TO CONTROL ESCALATING
HOSPITAL COSTS UNDER THE MEDICARE SCHEDULE HERE THE HOSPITAL'S BILL TO PAY
FOR THE INJURIES WAS 84,000 DOLLARS. THE PIP -- THE COURT DIRECTED THE COMMISSIONER
TO MY A PIP FEE SCHEDULE. IT DOES NOT APPLY IT INPATIENT HOSPITAL SERVICES
AND EVEN THOUGH THE COMMISSIONER WAS DIRECTED TO DO SO AS OF YET THERE IS NO INPATIENT
HOSPITAL FEE SCHEDULE. THE FEE SCHEDULE HERE, BECAUSE THERE'S NO FEE SCHEDULE,
THE HOSPITAL BILLED U CR OR THEIR COST WHICH WAS TEN TIMES 853,000 DOLLARS FOR
THE EXACT SAME SERVICES. THAT'S WHY THIS CASE IS HERE TODAY. AND THAT'S
WHY, QUITE FRANKLY, PIP CAN'T BE CALLED UPON TO PAY THE AMOUNT FIRST BECAUSE IT
HAS NO RIGHT TO GO AGAINST MEDICARE TO GET REIMBURSED FOR THE AMOUNT IT PAYS.
JUSTICE PATTERSON: THE PIP CARRIER CAN SUE THE COME CARRIER
FOR REIMBURSEMENT. SUSAN STRYKER: YES. JUSTICE
PATTERSON: AND PRESUMABLY OTHER INSURER'S PRIVATE COMPANIES THAT ENSURE. BUT MEDICARE
THERE'S NO MECHANISM FOR THAT, CORRECT? SUSAN STRYKER: I DON'T
BELIEVE THERE IS A MECHANISM AND THEN THE ISSUE IS THIS COURT HAS TO DECIDE
WHO PAYS FIRST WHO IS PRIMARY BECAUSE UNDER THE LAW THE PRIMARY INSURER, THAT IS
GOING TO BE THE CONTROLLING FEE SCHEDULE. AND THEN WHAT HAPPENED HERE WAS
SELECTIVE ERRONEOUSLY REJECTED THE COPAYMENTS AND DEDUCTIBLES THAT SHOULD HAVE BEEN
PICKED UP TO MAKE IT THE INSURED WHOLE HERE. JUSTICE LA
VECCHIA: SO MS. STRYKER, GOING BACK SOMETHING YOU JUST SAID BEFORE YOU MOVED ON,
THE LEGISLATURE HAS NOT ACTED TO FORCE HOSPITALS TO MOVE TO THE INPATIENT
DRG FEES FOR INPATIENT CARE, CORRECT? SUSAN STRYKER: THE LEGISLATURE.
JUSTICE LA VECCHIA: HAS NOT COMPELLED HOSPITALS TO GO TO THAT
SCHEDULE. THIS CASE WILL DO THAT. SUSAN STRYKER: HOPEFULLY.
JUSTICE LA VECCHIA: OKAY. TO BE CHEER WHAT'S BEING ACCOMPLISHED
WITH THIS JUDGMENT. SUSAN STRYKER: YES. BUT IN THIS CASE,
AGAIN, MEDICARE IS STILL THE RESPONSIBLE FEE PAYER BECAUSE IT'S CLEAR THAT -- AND
IN THIS CASE IT WAS VERY CLEAR THERE'S NO ISSUE OF PROMPT PAY HERE. SOMEONE
GETS ADMITTED TO THE HOSPITAL. THEY'VE GOT THEIR MEDICARE NUMBER. THE BILL IS
SUBMITTED AND IT'S NOT PAID. WE'RE NOT GETTING INTO A DISPUTE OF WHETHER OR
NOT THEY'RE MEDICARE ELIGIBLE IN THIS CASE OR WHETHER OR NOT --
JUSTICE LA VECCHIA: WHAT MAKES MY HEAD SPIN THOUGH IS WE HAD A JUDGMENT THAT
COMPELLED THESE INJURIES FOR MR. MECOUCH TO BE COVERED BY SELECTIVE. WHAT'S
THE MECHANISM THAT HAS SUDDENLY ENABLED AN INSURANCE CARRIER TO IGNORE THAT JUDGMENT
AND TELL THIS MEDICAL PROVIDER, WHICH THE LEGISLATURE HAS NOT CORRECTED,
THAT YOU MUST GO TO MEDICARE FIRST AND USE THEIR RATES? SUSAN
STRYKER: I WAS NOT INVOLVED IN THE CASE BELOW BUT MY RECOLLECTION OF THE.
JUSTICE LA VECCHIA: IN THE ABSTRACT HOW WILL IT WORK, I MEAN HOW WILL HOSPITALS
AND MEDICAL CARE PROVIDERS KNOW SUDDENLY HOW MANY YEARS SINCE 1980 THAT
INSURERS HAVE THE ABILITY, THESE PIP INSURERS FOR THE 150 CASES, TO NO LONGER BE
BILLED FOR SERVICES THEY MAY HAVE BEEN PAYING FOR DECADES?
SUSAN STRYKER: I BELIEVE THAT THE 150 INDIVIDUALS ARE VERY IDENTIFIABLE BECAUSE
OF THEIR CATASTROPHIC NATURE OF THEIR INJURIES. JUSTICE LA
VECCHIA: WOULDN'T THERE HAVE BEEN AN APPLICATION TO A COURT?
SUSAN STRYKER: I BELIEVE IT WAS SELF EXECUTING. IN THIS CASE THE APPLICATION IN
1979 WAS NOT WHETHER OR NOT PIP OR MEDICARE SHOULD PAY. THE ISSUE I
BELIEVE BEFORE THE COURT IN 1979 WAS THIS PERSON WHO WAS INJURED -- A COVERED
INDIVIDUAL. JUSTICE LA VECCHIA: BUT IT ENDED UP IN A
JUDGMENT SAYING THAT THE FATHER'S PIP COVERAGE THROUGH SELECTIVE HAD TO COVER THE
MEDICAL EXPENSES OF THE SON. SUSAN STRYKER: RIGHT. BUT ONCE THAT
INDIVIDUAL BECAME ELIGIBLE FOR MEDICARE, THOSE EXPENSES SHOULD HAVE BEEN
SUBMITTED TO AND PICKED UP BY MEDICARE, HE WOULD HAVE HAD A MEDICARE ISSUED ID
NUMBER AND WOULD HAVE BEEN -- IT WOULD HAVE BEEN VERY CLEAR TO THE HOSPITAL
-- JUSTICE LA VECCHIA: IF THIMS WAS SO CLEAR WHERE WAS THE
INSURANCE INDUSTRY FOR ALL THE YEARS SINCE 1980. SUSAN STRYKER:
I'M NOT SURE SELECTIVE THIS ONE CASE REPRESENTS THE ENTIRE INSURANCE INDUSTRY.
I DO BELIEVE THAT THERE ARE OTHER CASES WHERE THE INSURANCE INDUSTRY, THESE
BILLS ARE SUBMITTED AND PAID BY MEDICARE. AND THEN NO ISSUE ARISES AS TO, YOU KNOW,
IS THIS, YOU KNOW -- IS THERE A CARE PATH. IS THERE ANY NEXUS BETWEEN THE
ACCIDENT IN 1980 AND THE INJURIES SUFFERED TODAY. IT'S JUST COVERED. IT'S JUST
SUBMITTED AND COVERED AND NO ONE IS GOING TO COURT TO ARGUE WHETHER OR NOT
AN INJURY TODAY IS A RESULT OF AN AUTOMOBILE ACCIDENT THAT OCCURRED 40 YEARS
AGO. JUSTICE ALBIN: TELL ME IF I'M -- THE PREVIOUS ORDER ONLY
DETERMINED THAT MECOUCH WAS COVERED UNDER HIS FATHER'S POLICY. THAT WAS THE ONLY
ISSUE. SUSAN STRYKER: THAT'S MY UNDERSTANDING, YOUR HONOR,
YES. AND I'M NOT SURE AT THE TIME WHETHER MECOUCH WAS, IN FACT, COVERED BY MEDICARE
OR NOT. BECAUSE THE ACCIDENT I BELIEVE HAPPENED IN 1977. THE ORDER WAS
ISSUED IN 1979. I BELIEVE IT'S TWO YEARS OF A DISABILITY. SO AT THAT POINT IN
TIME I'M NOT SURE THAT HE WAS MEDICARE COVERED OR MEDICARE ELIGIBLE. BUT AT
SOME POINT IN TIME HE BECAME MEDICARE ELIGIBLE. BUT THE CONGRESS AND AN ENACTING
THE SECONDARY PAYER ACT SPECIFICALLY ENACTED IT AND ONE OF THE ISSUES WAS THAT
MEDICARE WAS PAYING FOR COVERAGE OF INJURIES THAT SHOULD HAVE BEEN BEING
PAID BY THE PRIVATE PASSENGER AUTOMOBILE MARKET. THAT THERE WAS A POLICY OF
INSURANCE AND MEDICARE WAS PAYING FOR THOSE INJURIES. SO ONE OF THE PURPOSES IN
THE LEGISLATIVE HISTORY OF THE MEDICARE SECOND DAY YEAR PAYER ACT WAS TO ADDRESS
THIS PRECISE ISSUE. JUSTICE ALBIN: THE OTHER THING, I JUST
WANT TO BE CHEER ABOUT, AT THE TIME THAT THE COURT ENTERED THE ORDER SAYING
MECOUCH IS COVERED BY HIS FATHER'S POLICY, MEDICARE WAS NOT AN AVAILABLE
COLLATERAL SOURCE ANY WAY. THIS WOULDN'T APPLY. BECAUSE HE WAS NOT MEDICARE ELIGIBLE
AT THE TIME. SUSAN STRYKER: I DON'T BELIEVE HE WAS AT THE TIME.
HE WOULD HAVE BEEN 24 MONTHS AFTER HE WAS DISABLED BUT I DON'T BELIEVE HE WAS -- AND
THERE'S NO EVIDENCE IN THE RECORD AS TO WHEN HE BECAME PRECISE THE DATE
HE STARTED BECOMING MEDICARE ELIGIBLE AND RECEIVING BENEFITS UNDER MEDICARE. BUT,
IF THE COURT IS LOOKING FOR A BRIGHT LINE RULE FOR THESE 150 PEOPLE, IT'S
VERY CLEAR. IF THE ACCIDENT OCCURRED PRIOR TO DECEMBER 5, 1980, MEDICARE PICKS UP
THESE EXPENSES AS PRIMARY PAYER AND THERE'S NO ARGUMENT AS TO WHETHER OR
NOT THE INJURIES WERE THE RESULT OF A 40-YEAR OLD AUTOMOBILE ACCIDENT. IT'S A BRIGHT
LINE -- IT'S THIS LIMITED CLASS OF PEOPLE AND IT, YOU KNOW, UNFORTUNATELY IT'S A
DECREASING CLASS OF PEOPLE BECAUSE AS THE YEARS GO ON THERE WILL BE LESS AND LESS PEOPLE
THAT ARE IMPACTED BY THIS. BUT MEDICARE, WHEN THEY ADOPTED -- CONGRESS ADOPTED
THE MEDICARE SECONDARY PRIMARY PAYER ACT. THEY MADE IT VERY CLEAR THEY WOULD TAKE
THE DATE OF ACCIDENT RATHER THAN THE DATE OF SERVICE. SO IF THERE WAS AN
ACCIDENT ON DECEMBER 4, 1980, THAT WOULD FALL UNDER MEDICARE IF IT WAS DECEMBER
6, 1980, THEN IT WOULD GO BACK TO THE PRIVATE PASSENGER AUTOMOBILE INSURER
AND THAT WAS SO AS NOT TO RETROACTIVELY ABROGATE STATE STATUTES AND POLICIES OF
INSURANCE. TODAY MEDICARE, UNDER THE MEDICARE SECONDARY PAYER ACT WILL NOT
PAY FOR PRIVATE PASSENGER AUTOMOBILE INJURIES. THAT FALLS ON PIP. UNDER THE BUYER'S
GUIDE INDEPENDENT SHURDZ HAVE A CHOICE OF SELECTING A HEALTH INSURER BUT
CONSUMERS ARE WARNED THAT MEDICARE WILL NOT PICK UP EXPENSES OF AUTOMOBILE INJURIES.
I BELIEVE THAT THE APPELLATE DIVISION DECISION WAS AN ATTEMPT TO MAKE SENSE
AND HARMONIZE THE FEDERAL SCHEME WITH THE STATE SCHEME AND FOR THAT REASON I C
N.J. WOULD ASK THE COURT TO AFFIRM THE DECISION AND TO GIVE US GUIDANCE ON THIS
LIMITED CLASS OF INDIVIDUALS. IT WILL NOT IMPACT EVERYONE. IT WILL IMPACT
THIS DECREASING CLASS OF PEOPLE. CHIEF JUSTICE RABNER: THANK YOU.
SUSAN STRYKER: THANK YOU. CHIEF JUSTICE RABNER:
MR. WOJCULEWSKI, VERY BRIEF REASONABLE, PLEASE. STANLEY G.
WOJCULEWSKI: VERY BRIEF, VERY POIGNANT. MAINLY TO ADDRESS A COUPLE OF QUESTIONS
THAT WERE RAISED FIRST BY JUSTICE PATTERSON WHO HAD ASKED A QUESTION
REGARDING THE HISTORY OF RE REIMBURSEMENT ON HOW SELECTIVE WAS PAYING PRIOR TO 2016.
AS PART OF THE RECORD IT WAS IN OUR BRIEF SUBMITTED BELOW ON PAGE 6, THE
LEDGER THAT HAD BEEN SUBMITTED BY SELECTIVE DID DEMONSTRATE THAT PRIOR TO THE
HOSPITALIZATION THAT WE'RE HERE FOR TODAY SELECTIVE HAD ISSUES PAYMENTS TO
COOPER HOSPITAL IN THE AMOUNT OF 59,640,077 DOLLARS OVER THE COURSE OF A NUMBER
OF YEARS. THERE'S BEEN MUCH DISCUSSION. USE OF THE WORD PERSON IN THE LIMITING
CHARGE ( STATUTE, HOWEVER, I DON'T THINK WE LOSE SIGHT OF THE FACT THAT -- THERE ARE
TWO CONDITIONS SO YOU HAVE AN INDIVIDUAL PERSON BUT THEN YOU ALSO HAVE THE
INDIVIDUAL PERSON IS ELIGIBLE FOR PAYMENT UNDER THE SUBCHAPTER SO IT'S UNDISPUTED
AND WE DISCUSSED THE FACT THAT AT THE TIME OF THE ACCIDENT THERE WAS NOT AN
ENTITLEMENT FOR PAYMENT OF MEDICARE IN 1977 AT THE TIME OF THE ORDER ESTABLISHING
SELECTIVE'S OBLIGATION TO PAY THERE WAS NOT AN ENTITLEMENT TO BE PAID MEDICARE.
AND SELECTIVE HAD FROM 1979 THROUGH 2015 HAD, IN FACT, BEEN ACTING AS THE
PRIMARY PAYER OF BENEFITS THROUGHOUT THAT TIME. ONE OTHER POINT AGAIN WITH RESPECT
TO JUSTICE ALBIN I WOULD SUGGEST TO YOU THAT THE PURPOSE OF THE COLLATERAL
SOURCE RULE AGAIN IS TO PREVENT DOUBLE RECOVERY AS STATED BY THIS COURT IN THE
HARDEE DECISION NOT AS A COST-SAVING MEASURE BUT AS A COST SHIFTING MEASURE
AND I WOULD ALSO AGAIN REINFORCE MR. HILLE'S POINT THAT THE BALANCED BILLING ASPECT
OF THE LIMITING CHANGE AGAIN IS A PROTECTION FOR THE BENEFICIARY AND
UNDER THE CIRCUMSTANCES PRESENTED HERE TODAY THE BENEFICIARY IS NOT BEING ASKED
FOR ANY MONEY AND WILL PHOTO HAVE ANY LIABILITY FROM EITHER MEDICARE OR NO
FAULT. THANK YOU. CHIEF JUSTICE RABNER: THANK YOU. THANK
YOU, COUNSEL FOR THE FINE ARGUMENTS. WE'LL TAKE THE MATTER UNDER ADVISEMENT.