Amicus Curiae Brief — Telecare Corp. v. Leavitt

benefit promised under the plan and has no further

liability under the plan.*

Thus it is that a medical plan may be described as

“insured” without establishing whether the employer

bears ultimate financial responsibility for the reimburse-

ments. If the employer has promised the bottom-line result

- reimbursement of medical expenses — then the employer

bears ultimate financial responsibility regardless of

whether there is any insurance or trust. But if the em-

ployer has promised only to pay premiums on insurance,

the employer has not promised reimbursement of expenses

and thus bears no responsibility under the plan for reim-

bursing employees for covered medical expenses.

Not only is this latter approach permissible under

ERISA, but it is vital in the interest of certain businesses,

especially small business. Most smal] businesses cannot

afford to promise reimbursement of expenses, because just

one significant expense, such as open heart surgery or a

premature birth, can wipe out the employer. Small busi-

nesses do not have the luxury of a large population of

employees over which to spread the risk. In order to be

able to provide any medical benefits at all, small busi-

nesses must be able to insure and thereby cap their

exposure at the premiums paid.

* As noted in the petition, the plan at issue in this case is of this

latter type, where the employer's liability is expressly limited to

payment of premiums. Pet. at 4.

10

B. Medicare Secondary Payer Imposes Liability On

Only Those Employers Who Bear Ultimate Fi-

nancial Responsibility For the Benefits Under

Their Plans, Whether Insured or Not.

In the decision below, the Federal Circuit struggled

with a question that it saw as “black or white”: are all

employers with insured plans exempt from Medicare

Secondary Payer or are all employers with insured plans

automatically subject to Medicare Secondary Payer?

Once it is understood that some employers with

insured plans bear ultimate financial responsibility for

reimbursement of medical expenses but others do not, a

middle ground appears: Medicare Secondary Payer applies

to those employers with insured plans who bear ultimate

financial responsibility for reimbursement of medical

expenses under their plans but does not apply to those

employers who have chosen to limit their promise to the

payment of premiums and therefore bear no responsibility

for reimbursement of medical expenses under their plans.

This middle ground harmonizes all of the words of the

statute, preserves its core value, and avoids burdening

employers in conflict with ERISA.

The statute permits the United States to recover from

“any or all entities that are or were required or responsible

.. . to make payment with respect to the same item or service

... under a primary plan.” 42 US.C. § 1395y(b\2BYXiii)

(emphasis added). Because of disagreements over the years

as to who those entities might be, Congress added and then

beefed up a parenthetical giving examples of entities that

might be “required or responsible ... to make payment...

under a primary plan.” That parenthetical list includes

“self-insurer(s]” and also “an employer that sponsors or

contribute to a group health plan.” Ibid.

11

The essence of the problem confronting the Federal

Circuit was that neither of the “black or white” extremes

fit the statute as written:

— The view that Medicare Secondary Payer applies to

self-insured employers but not to those which insure their

plans is contradicted by the parenthetical list, which

mentions both employers that self-insure and others who

do not. Congress clearly knew that some employers self-

insure, while others purchase insurance, and did not

intend to exempt the latter categorically.

~- The contrary interpretation (that Medicare Secon-

dary Payer applies to all employers whether or not they

insure their plans) is contradicted by the language that

flanks the parenthetical. That is, the statute provides that

Medicare Secondary Payer applies to entities such as

those in the parenthetical who are “responsible ... to

make payment with respect to the same item or service...

under a primary plan,” but there are many employers with

insured plans who are not responsible to make payment

under their plans, so it cannot be said that Medicare

Secondary Payer applies to all employers whether or not

they insure their plans. (Such an interpretation could not

be maintained without reading “that are ... responsible

... to make payment ... under a primary plan” out of the

statute.)’

" In the past, respondents have relied on two district court cases

(App. at 48a), but they do not stand for the proposition for which they

are cited. In Provident Life and Accident Ins. Co. v. United States, 740

F. Supp. 492 (E.D. Tenn.1990), the court declared that the employer

would bear ultimate financial responsibility if, hypothetically speaking,

the plan were self-funded. In United States v. Blue Cross and Blue

Shield of Michigan, 726 F. Supp. 1517 (E.D. Mich.1989), the court

(Continued on following page)

12

The middle ground harmonizes all of the words of the

statute. The middle ground is that Medicare Secondary

Payer applies to those employers, including those who

purchase insurance, who bear ultimate responsibility for

reimbursement of medical expenses under their plans but

does not apply to those employers who have chosen to

limit their liability to payment of premiums and therefore

do not bear any responsibility for reimbursement of

medical expenses under their plans. That is exactly what

the statute says. Medicare Secondary Payer applies to

“any and all entities that are required or responsible . . . to

make payment ... under a primary plan,” including, for

example, those who may be responsible “as an insurer or

self-insurer, as a third-party administrator, as an em-

ployer that sponsors or contributes to a group health plan,

or large group health plan.”

Thus, an insured employer that nevertheless has

chosen to promise the ultimate benefit of reimbursement

of medical expenses under its plan can be liable under

Medicare Secondary Payer. But an insured employer that

has chosen to limit its liability to the purchase of insurance

and thus does not bear any responsibility for reimbursement

of medical expenses is not liable under Medicare Secondary

Payer. All of the words of the statute are given meaning, all

are given their normal meanings, and none are surplusage.

In addition, that reading preserves the intent behind the

statute and saves it from a fatal conflict with ERISA.

stated that the employer bore full financial responsibility under the

plan because, once again, the plan was self-funded. Neither of those

cases said, even in dicta, that the employer always bears ultimate

financial responsibility under an insured plan. (As shown above, that

depends on the nature of the promise made by the employer in the plan

document.)

13

As explained by the petitioner in the petition (at 2-4,

8-11), the intent behind the statute from its origin has

been to assure that the entity that should have paid the

expense in the first place pays it in the end. That is to say,

Congress has always intended to fasten liability on the

party who would have borne the cost if Medicare had not

made the mistake of paying on a primary basis. Of course,

that is the entity that bears ultimate financial responsibil-

ity for reimbursement of medical expenses under the

terms of the plan.*

Nowhere in the statute or its legislative history has

Congress breathed a single word about creating a new

liability and fastening it on a party that never was respon-

sible for the expenses in the first place under the terms of

the plan. And yet that is the result of the decision below:

employers that capped their exposure at the payment of

premiums, as they are allowed to do under ERISA and

must do for their own survival, now face open-ended

liability for medical expenses, all depending on the vaga-

ries of whether Medicare pays a claim by mistake and

whom Medicare goes after for reimbursement.

Besides doing violence to the language of the Medicare

Secondary Payer statute and the uniform intent of Congress,

the decision below needlessly puts Medicare Secondary

* The exception proves the rule. The exception is that Medicare

may collect from a third-party administrator, which by definition does

not bear ultimate responsibility for reimbursements. 42 U.S.C.

§ 1395y(bX 2X Billi). But the exception limits that right of recovery to

those situations where the third-party administrator remains entitled

to reimbursement from the entity that really does bear ultimate

financial responsibility. Jbid. Thus, the exception proves the rule that

Congress always intended the liability to end up with the entity that

bears ultimate financial responsibility under the terms of the plan.

14

Payer in conflict with ERISA. That is to say, ERISA leaves

employers free to cap their liability by promising to pay

premiums on insurance policies, rather than promising to

provide reimbursement of medical expenses. ERISA

assures employers that they control the promise and will

not be held to any liability that they have not voluntarily

taken on in their plans. But the decision below conjures a

liability out of thin air and imposes it on the employer

contrary to the terms of the employer’s plan and the

assurance of ERISA. An interpretation of Medicare Secon-

dary Payer that places it in plain conflict with ERISA

should be strongly disfavored.

C. Imposing a New Liability at Random on Small

Business Is Exactly the Wrong Policy to Encour-

age Expansion of Health Insurance Coverage.

The effect of the decision below is to say to small

business, “You may have thought that you were fully

insured for medical expenses, so that your cost was fixed

at the insurance premium. But if Medicare makes a

mistake in paying a claim and chooses to come after you,

you are not insured after all. Instead, you owe Medicare

for the full amount of the claim. You never know when this

might happen and there’s nothing you can do about it.”

One of the fundamental purposes of ERISA was to

promote and encourage the formation of employee benefit

plans. This Court has been vigilant in pursuit of that

purpose, striking down decisions of lower courts that,

however well intended, threatened to burden the mainte-

nance of employee benefit plans in ways not contemplated

by Congress and, ironically, lead to the elimination of

employee benefit plans. Ingersoll-Rand v. McClendon, 498

U.S. 133 (1990), Curtiss-Wright v. Schoonejongen, 514 U.S.

15

73 (1995), Lockheed Corp. v. Spink, 517 U.S. 882 (1996),

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999). The

decision below is such a decision.

It is bad enough that the decision below strips from

small business the critical protection of insurance against

medical expenses that ERISA affords to them. The more

frightening aspect is that the liability is entirely unpre-

dictable and capricious. The liability is unpredictable

because there is no way of knowing in advance what

claims Medicare will pay by mistake, nor whether those

expenses will be large or small. The liability is capricious

because Medicare at its whim may compel reimbursement

from the plan, the insurance company or (according to the

decision below) the employer. Any court should hesitate to

interpret a statute in such a manner as to give the gov-

ernment, at its whim, the ability to impose liability on the

employer for a mistake that the government made. How

can small business reasonably be expected to guarantee

the accuracy of Medicare’s claims processing?

The current climate is one in which small business

struggles to provide any health insurance at all. While

small business is widely recognized as the engine of the U.

S. economy, the percentage of small businesses that

provide health insurance has actually been declining in

recent years, according to authoritative studies, and the

principal reason has been cost.’ The decision below, which

* “While the percentage of firms offering health benefits is statisti-

cally unchanged from last year, it has declined over the last few years.

Annual changes have been small, but the cumulative result is a

statistically significant decline in the percentage of firms offering

health benefits, from 69% in 2000 to 60% in 2005. This drop is driven

largely by a significant decline in the percentage of small firms (3-199

workers) offering coverage, which has fallen from 68% to 59% over the

(Continued on following page)

16

imposes a new, unpredictable liability at random on those

small businesses that provide health insurance, can only

accelerate the trend toward loss of coverage, contrary to

the desire of Congress.

D. Given the Exclusive Jurisdiction of the Federal

Circuit, It Would Be Futile to Await a Conflict

Among the Circuits.

Speaking for the business community, especially the

small business community, we wish to underline the

urgency of this case and the futility of awaiting a conflict

among the circuits. As noted in the petition (Pet. at 17-18),

respondents have a suitable means of vindicating their

illegitimate claims for reimbursement without ever bring-

ing an action in federal court which might expose them to

the threat of an inconsistent decision. That is, respondents

can and do rely on the Treasury Offset Program, which

permits them to take the amount of their claim out of the

employer’s tax refund.

And if an employer should be motivated to sue for a

refund, as petitioner did in this case, the Federal Circuit

would have exclusive jurisdiction of the appeal, guarantee-

ing the same outcome.

In short, no further development of the issue can be

expected. This Court’s review of this case is the only hope

that small business has of correcting this error and avoiding

same period.” The Kaiser Family Foundation and Health Research and

Educational Trust, “Employer Health Benefits, 2005 Summary of

Findings” at 4 (2005). Cost is overwhelmingly cited as the reason. Jd. at

chart #11.

17

its inevitably debilitating effect on the willingness of small

business to offer medical insurance.

+

CONCLUSION

In ERISA, Congress sought and achieved a balance

between the rights of employees (and others) and the

burdens on employers, recognizing that misguided reguia-

tion could easily go overboard and, ironically, lead to the

elimination of employee benefit plans. This Court has

repeatedly upheld the balance that Congress achieved in

ERISA against those who would upset it by imposing

additional burdens on employers, and the time has come to

do so again by granting certiorari in this case — a case that

threatens the backbone of the private system of medical

insurance, namely, small business.

Respectfully submitted,

Of Counsel: HOLLis T. HURD

STEPHEN A. BOKAT Counsel of Record

Rosin S. CONRAD THE BENEFITS DEPARTMENT

ROBERT J. COSTAGLIOLA Suite 120

NATIONAL CHAMBER 3 Penn Center West

LITIGATION CENTER, INC. Pittsburgh, PA 15276

1615 H Street, N.W. (412) 788-2334

Washington, DC 20062

(202) 463-5337

Counsel for Amici Curiae

IN THE

Supreme Court of the United States

TELECARE CorP.,

Petitioner,

Vv.

MIKE LEAVITT, SECRETARY OF HEALTH AND HUMAN

SERVICES; DEPARTMENT OF HEALTH AND HUMAN SERVICES;

and CENTER FOR MEDICARE AND MEDICAID SERVICES,

Respondents.

On Petition for Writ of Certiorari

to the Court of Appeals for the Federal Circuit

REPLY BRIEF FOR PETITIONER

JAMES WALSH

BRUCE LAMKA

EpwiIn D. RAuZ!

JEFFREY L. FISHER*

DAVIS WRIGHT TREMAINE LLP

2600 Century Square

1501 Forth Avenue

Seattle, WA 98101-1688

(206) 622-3150

*Counsel of Record

TABLE OF CONTENTS

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A. The 2003 Amendments To The MSP Statute

Do Not Impose Non-contractual Liability On

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B. This Court Should Review This Issue

ET javenaiminminpmneiaiannils 6

CONCLUSION ..........0000. sjadusuieneeuresvensusssnsessee senmucesteseusnittateinasith 8

ii

TABLE OF AUTHORITIES

Cases:

Central Laborers’ Pension Fund v. Heinz, 541

Cha FEE Ge nerpnieneimsndemmmmnagegmmaniiinnnnainnass 3

Curtiss-Wright v. Schoonejongen, 514 U.S. 73 (1995) ........cc00-+ 3

Health Insurance Ass'n v. Shalala, 23 F.3d 412

a. Gs Fe cerersnstnersricerivsnestneminicapicaenamaiinaniiinin 1,4

Statutes and Regulations:

OM 5

SE Co Bf | eS 2

42 U.S.C. § 1S9Sy(OKZNONM iii) ....-ceccccercererereessorercereeersorers passim

42 U.S.C. § 1395y(b)\(3)(A) .....--.---. oe Ree eR ere 7

GB CF Be GSE Rp cerccesrennsereccenssenrtnnmmnaneeinananat 2

Other authority:

Routh, Paul J., Benefits Guide: Health Plans and

Other Employer Sponsored Benefits § 3:22

(Nov. 2005 database update) ................sccscsesesessersesercereseseess 5

REPLY BRIEF FOR PETITIONER

The government does not dispute that, prior to the

Federal Circuit’s decision in this case, federal courts of appeals

uniformly agreed that the government could invoke the MSP

statute only against employers that were contractually

obligated to pay for an individual’s medical services. See Pet.

for Cert. at 8-10 (citing cases from several federal circuits); Br.

of Chamber of Commerce et al. as Amici Curiae (hereafter

“Business Amici”) at 13. Yet the government contends that the

2003 amendments to the MSP statute — which it acknowledges

were enacted “to clarify rather than to change the law” (BIO at

5) — nevertheless effectuated a fundamental and profound

change in Medicare law, creating a brand new system under

which the government may require employers to pay for their

employees’ medical care even when employers bear no

contractual financial responsibility whatsoever for those

services. Under the government’s view, Congress — without

ever breathing a single word in a single hearing or report on the

matter — intended in 2003 to transform a mere administrative

“reimbursement” mechanism into a new system of liability that

contravenes not just the prior conception of the MSP program

but also, as the Business Amici explain, basic principles of

ERISA law.

The government’s argument — to borrow the D.C.

Circuit’s phrase from the only other time in which the

government has advanced a similar position ~ is “a complete

jumble.” Health Ins. Ass'n v. Shalala, 23 F.3d 412, 417 (D.C.

Cir. 1994). It cannot be that the 2003 amendments

simultaneously did nothing at all and also transformed the MSP

system fundamentally. Rather, the amendments can and should

be treated as leaving in place the principle that the government

may recover money from employers under the MSP statute

only when those employers had a contractual obligation in the

first instance to pay for a medical item or service. The Federal

2

Circuit’s transformative decision to the contrary should be

reviewed at once.

A. The 2003 Amendments To The MSP Statute Do

Not Impose Non-contractual Liability On

Employers.

The government asserts that any employer that sponsors

or contributes to a group health plan is subject to the

government’s MSP recoupment power, “without regard to

whether the [employer] was contractually . . . required to pay

for the cost of medical care.” BIO at 8.’ This argument for

extending the government’s power beyond situations involving

pre-existing contractual liability suffers from three major

deficiencies.

1. The government is unable to give meaning to the MSP

reimbursement statute’s operative terms. Amn entity is subject

to the government’s MSP recoupment power only if it is

“responsible . . . under a primary plan” for paying for the

medical care at issue. 42 U.S.C. § 1395y(b)(2)(B)(iii). Yet the

government never seriously engages with this language. The

most it does is quickly assert at one point that, because

employer plan contributions may lose their tax deductible

status if third-party insurers illegally discriminate against

Medicare recipients, employers that establish third-party

insurance arrangements are “responsible for payment being

made in a manner that comports with the requirements of the

MSP statute.” BIO at 3, 8 (emphasis added).

' The government also suggests (BIO at 8) that a regulation that existed

prior to the 2003 amendments, 42 C.F.R. § 411.24(e), interpreted the MSP

statute this way. But the key language in the government's brief appears

nowhere in that regulation. Nor had any court ever interpreted the

regulation to mean what the government says here it meant. That is because

the regulation simply said the same thing as the statute itself.

3

Not even the Federal Circuit accepted this argument for

satisfying § 1395y(b)(2)(B){iii)’s responsibility requirement,

for it ignores that an entity is subject to the government’s MSP

recoupment power only if it is “responsible” — to repeat —

“under a primary plan” for paying for the medical service at

issue. 42 U.S.C. § 1395y(b\(2\(BY\iii) (emphasis added).”

Employers such as Petitioner have no such responsibility under

a primary plan. Indeed, the very purpose of third-party

insurance arrangements is to create primary plans under which

insurance companies bear sole responsibility for paying

employees’ medical bills. And such arrangements do not

somehow “shift” financial responsibility to insurance

companies or “relieve” employers of some responsibility to

reimburse Medicare when Medicare pays for their employees’

medical services. BIO at 8, 10. Employers do not have any

responsibility in the first place to offer any medical plans to

employees. See, e.g., Central Laborers’ Pension Fund v.

Heinz, 541 U.S. 739, 743 (2004) (“Nothing in ERISA requires

employers to establish employee benefit plans.”); Curtiss-

Wright v. Schoonejongen, 514 U.S. 73, 78 (1995) (same). Nor

do employers have any pre-existing or default obligation to pay

for employees’ medical services that are covered by Medicare.

Such an obligation arises only when an employer voluntarily

decides to “bear[{] the ultimate responsibility for satisfying

those expenses.” Business Amici Br. at 7.

? Of course, the Federal Circuit tried to finesse the “responsibility”

requirement in the MSP statutory language in a different way, asserting that

the term “responsible” means “involving a degree of accountability.” Pet.

App. 16a. But, as Petitioner and the Business Amici have explained, this

suggestion, even if true, does not support the Federal Circuit's holding.

Employers who simply pay premiums to insurance companies have no

degree of accountability whatsoever for their employees’ medical bills. Pet.

for Cert. at 11; Br. of Business Amici at 3 n.2. That is presumably why the

government advances a different argument here instead of trying to defend

the Federal Circuit's analysis on this peint.

4

In short, the MSP statute’s antidiscrimination provisions

simply encourage employers to ensure that third-party insurers

pay for employees’ medical coverage on an equal basis. They

do not impose any obligation on non-insurers actually to pay

medical bills. See Health Ins. Ass'n, 23 F.3d at 427

(Henderson, J., concurring).

2. The government’s suggestion that its position is

necessary to give meaning to other statutory terms likewise

fails to withstand scrutiny. The government posits that the

Federal Circuit’s transformation of the MSP program is

necessary to give independent meaning to the statute’s

parenthetical indication that it reaches “an etployer that

sponsors or contributes to a group health plan.” BIO at 9

(quoting § 1395y(b\2)B)iii)). But the government’s

assertion (BIO at 9) that this quoted phrase would not be

necessary to cover self-insuring governmental, non-profit or

charitable employers simply does not follow from the statute’s

restrictive definition of self-insuring entities, which is limited

to entities engaged in a “business, trade, or profession.” 42

U.S.C. § 1395y(b)(2)(A).

Perhaps more important, the government does not even

try to refute the Business Amici’s explanation that the quoted

phrase also can be read independently to apply to all kinds of

employers that purchase third-party insurance but “still bear

ultimate financial responsibility for the benefits.” Br. of

Business Amici at 3-4. Given the ready availability of

interpretations that give meaning to the quoted phrase and that

are consistent with the longstanding conception of the MSP

program — a conception the government itself acknowledges

was not supposed to be altered in the 2003 amendments (BIO

at 5) — the Federal Circuit should have adopted one.

3. The government's construction of the statute also is at

loggerheads with its overriding purpose. Petitioner and the

Business Amici have explained that imposing the new kind of

5

non-contractual MSP liability the Federal Circuit has created

would push small employers to cease offering any medical

plans to employees. Such repeals of coverage would shift

those expenses — contrary to the cost-cutting purpose of the

MSP program — solely to Medicare. Pet. for Cert. at 2, 16;

Business Amici at 15-16. The government responds that this is

immaterial because “small employers are exempt from the

statute’s requirements.” BIO at 9. Yet the statute exempts

only those businesses with fewer than twenty employees. 42

U.S.C. § 1395y(b){1)(A)(ii). The legion of small businesses

with twenty or more employees would face exactly the

perverse choice Petitioner has described.

The government also insists that employers that sponsor

or contribute to health plans can protect themselves from

liability either by persuading their insurance carriers always to

reimburse Medicare directly (even if outside of the customary

one-year period for submitting claims) or by negotiating

indemnity provisions. BIO at 10. “Although this advice...

may sound good, as a practical matter, most carriers simply

will not amend their contracts” to cover claims outside of

standard contractual limitations periods. Paul J. Routh,

Welfare Benefits Guide: Health Plans and Other Employer

Sponsored Benefits § 3:22 (Nov. 2005 database update)

(commenting on Federal Circuit’s decision here). And it blinks

reality to suggest that small or even big businesses will be able

to extract indemnity provisions from third-party insurers. The

government does not provide any evidence that any employer

has ever done so, and Petitioner is not aware of any either.

6

B. This Court Should Review This Issue Without

Delay.

The government does not dispute the importance of the

question presented, but it urges this Court to delay review for

two reasons. Neither withstands scrutiny.

1. The government states that the Federal Circuit's

decision is the first appellate decision to interpret the 2003

amendments and suggests that it does not conflict with the

decisions Petitioner cites (Pet. for Cert. at 9-10) because those

decisions “were decided before Congress enacted the 2003

amendments.” BIO at 10. Yet, as the government

acknowledges elsewhere, “Congress formally declared that the

amendments were ‘clarifying,’ 117 Stat. 2221,” and were not

“intended . . . to change the law.” BIO at 5. Accordingly, the

fact that the Federal Circuit's decision disagrees with prior

uniform precedent to hold that the MSP statute goes beyond

contractual obligations to create new liability is highly

relevant, deeply troubling, and worthy of prompt review.

2. Although the government does not dispute that any

future case an employer brings respecting the question

presented will flow to the Federal Circuit, it asserts that further

percolation may still prove useful because future cases may

arise in other circuits if (a) the government sues employers who

are not subject to the treasury offset program or (b) private

parties initiate private cases against other private parties. BIO

at 11-12. Neither hypothetic a: scenario, however, supports the

government’s assertion.

First, the government does not point to a single actual

case — either before or after the 2003 amendments — in which it

has sued an employer under the MSP statute for the cost of an

individual employee's medical bills. Nor is Petitioner aware of

any. This is hardly surprising, since the treasury offset

program is almost always available, and when it is not, the

7

government uses other heavy handed collection methods to get

the money it wants. In its demand letters, the government tells

employers that a failure to pay may result in the government

disqualifying the employer’s plan, thereby subjecting all the

employer's contributions to taxation. The government also

threatens to seek double damages from employers, as provided

in 42 U.S.C. § 1395y(b\2\B\iii). Pet. App. 49a. Thus, in

order for an employer to oppose the government's position in a

manner that would subject it to appellate litigation outside of

the Federal Circuit, an employer would have to risk significant

penalties that go well beyond the amount at issue. Apparently

no employer ever has been willing to do so with respect to a

dollar amount that the government thought was worth pursuing

by filing suit.

Second, any private cause of action a party initiates will

not squarely raise the question presented because it would

involve a different statutory provision than is at issue here.

The private action provision requires lawsuits to be brought

when “a primary plan fails to pay,” 42 U.S.C.

§ 1395y(b\(3)(A); it does not give private parties the power —

as the government says it has in the statute at issue here — to

sue an entity, other than a plan, that bears no contractual

responsibility to pay for a medical service. BIO at 8. Even if

the government were correct that employers that sponsor third-

party imsurance are somchow “responsible” under

§ 1395 y(b)\(2)(B\iii) to pay for medical services, it would be a

different matter to say that such employers are plans

themselves, as would be required in the context of a private

lawsuit.

Accordingly, this Court should use this case to review the

question presented, as it is highly unlikely that another suitable

vehicle will arise anytime soon, if at all.

8 _

CONCLUSION

For the foregoing reasons, as well as those stated in the

petition for certiorari, the petition for writ of certiorari should

be granted.

Respectfully submitted,

JAMES WALSH

BRUCE LAMKA

EpwIn D. RAuzI

JEFFREY L. FISHER*

DAVIS WRIGHT TREMAINE LLP

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101-1688

(206) 622-3150

December 2005 *Counsel of Record