No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
GOL 5-105 PREEMPTED BY MEDICARE ACT
Trezza v Trezza, 2012 NY Slip Op 09048 (2d Dept. 2012)
“For the reasons which follow, we conclude that General Obligations Law § 5-335 [the anti-personal injury subrogation statute], insofar as applied to Medicare Advantage organizations, is preempted by federal law because it restricts the contractual reimbursement rights to which those organizations are entitled pursuant to the provisions of Title XVIII of the Social Security Act, as amended, 42 USC § 1395 et seq., commonly known as the Medicare Act (see generally Heckler v Ringer, 466 US 602, 605).”
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“Based on the express preemption provision set forth in 42 USC § 1395w-26(b)(3), as well as the regulations set forth in 42 CFR 422.108(f), we hold that General Obligations Law § 5-335, insofar as applied to Medicare Advantage organizations under Part C, is preempted by federal law since it would impermissibly constrain contractual reimbursement rights authorized under the “Organization as secondary payer” provisions of the Medicare Act.”
What is Medicare advantage? A Medicare secondary payer organization. In this case, it was underwritten by Oxford.
The big battle that is brewing is whether ERISA preempts 5-105 as it relates to a standard group health care plan.
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