                                           PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                     No. 13-3483
                     ___________

    CECELIA A. TARANSKY, Individually and on
       behalf of all persons similarly situated,
                                           Appellant

                           v.

SECRETARY OF THE UNITED STATES DEPARTMENT
      OF HEALTH AND HUMAN SERVICES;
   UNITED STATES DEPARTMENT OF HEALTH
   AND HUMAN SERVICES; UNITED STATES OF
                 AMERICA
                 __________

    On Appeal from the United States District Court
              for the District of New Jersey
                (D.C. No. 1-12-cv-04437)
    District Judge: Honorable Joseph H. Rodriguez
                      ___________

                 Argued April 8, 2014
          Before: HARDIMAN, SLOVITER
             and BARRY, Circuit Judges.

                 (Filed: July 29, 2014 )
Franklin P. Solomon [Argued]
Suite 500
457 Haddonfield Road
Cherry Hill, NJ 08002

Alan H. Sklarsky
Williams Cuker Berezofsky
Suite 101
210 Lake Drive East
Woodland Falls Corporate Park, Suite 101
Cherry Hill, NJ 08002

Joseph A. Venti
Williams, Cuker & Berezofsky
1515 Market Street
Suite 1300
Philadelphia, PA 19102
       Attorneys for Plaintiff-Appellant

Daniel Tenny [Argued]
United States Department of Justice
Civil Division
Room 7215
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Karen D. Stringer
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Attorneys for Defendant-Appellees




                               2
                       ____________

                         OPINION
                       ____________


HARDIMAN, Circuit Judge.

       This appeal arises under the Medicare as a Secondary
Payer Act (MSP Act), 42 U.S.C. § 1395y(b)(2). Appellant
Cecelia A. Taransky, a Medicare beneficiary, contends that
she is not required to reimburse the Government1 for
conditional medical expenses that it advanced on her behalf.
We disagree.

                               I

       Medicare is a federal entitlement program that
provides health insurance benefits to qualified elderly and
disabled individuals. See 42 U.S.C. § 1395y(b)(2). When first
enacted, Medicare paid its beneficiaries’ medical expenses,
even if beneficiaries could recoup them from other sources,
such as private health insurance. See, e.g., Zinman v. Shalala,
67 F.3d 841, 843 (9th Cir. 1995).



       1
         Appellees in this case are the Secretary of the U.S.
Department of Health and Human Services, the U.S.
Department of Health and Human Services, and the United
States. For ease of reference, we refer to Appellees as the
Government.




                              3
        In 1980, Congress enacted the MSP Act in an effort to
reduce escalating costs. As its title suggests, the statute
designates Medicare as a “secondary payer” of medical
benefits, and thus precludes the program from providing such
benefits when a “primary plan” could be expected to pay. 42
U.S.C. § 1395y(b)(2)(A). When the primary plan cannot
promptly pay a beneficiary’s medical expenses, however,
Medicare makes conditional payments to ensure that the
beneficiary receives timely care. Id. § 1395y(b)(2)(B). Once
“the beneficiary gets the health care she needs . . . Medicare is
entitled to reimbursement if and when the primary payer pays
her.” Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775,
777 (11th Cir. 2002).

       This appeal involves, inter alia, the interaction of the
MSP Act with a state law, the New Jersey Collateral Source
Statute (NJCSS), N.J. Stat. Ann. § 2A:15–97. Under the
NJCSS, a tort plaintiff cannot recover damages from a
defendant when she has already received funding from a
different source. The statute provides:

       In any civil action brought for personal injury or
       death . . . if a plaintiff receives or is entitled to
       receive benefits for the injuries allegedly
       incurred from any other source other than a
       joint tortfeasor, the benefits, other than workers’
       compensation benefits or the proceeds from a
       life insurance policy, shall be disclosed to the
       court and the amount thereof which duplicates
       any benefit contained in the award shall be
       deducted from any award recovered by the
       plaintiff, less any premium paid to an insurer
       directly by the plaintiff or by any member of the
       plaintiff’s family on behalf of the plaintiff for



                                4
       the policy period during which the benefits are
       payable.

N.J. Stat. Ann. § 2A:15–97 (emphasis added).

        The NJCSS has two purposes. First, it prevents a tort
plaintiff from recovering damages from both a collateral
source of benefits (i.e., a health insurer) and a tortfeasor.
Parker v. Esposito, 677 A.2d 1159, 1162 (N.J. Super. Ct.
App. Div. 1996). Second, it aims to shift the burden of
medical costs related to tort injuries, whenever possible, from
liability insurers to health insurers, and thereby keep liability
insurance premiums down. Lusby v. Hitchner, 642 A.2d 1055,
1061 (N.J. Super. Ct. App. Div. 1994). In this appeal,
Taransky contends that because the NJCSS barred her from
recovering medical costs from her tortfeasor, it would be
inappropriate for her to reimburse the Government for its
conditional medical payments.

                               A

       Taransky was injured on November 7, 2005, when she
tripped and fell at the Larchmont Shopping Center in Mt.
Laurel, New Jersey. The Medicare program conditionally
paid $18,401.41 for her medical care.

       Almost two years later, Taransky filed suit against the
owners and operators of the shopping center (collectively,
Larchmont) in the Superior Court of New Jersey, Burlington
County, seeking damages for bodily injury, disability, pain
and suffering, emotional distress, economic loss, and medical
expenses. Shortly after filing suit, Taransky’s lawyer
contacted her designated Medicare contractor repeatedly,
requesting the exact amount of Medicare’s claim. In one




                               5
letter, counsel complained: “I cannot negotiate the case unless
I know the full amount of Medicare’s claim.” JA at 295. In
another, he stated: “I would like to try to resolve Ms.
Taransky’s claim, but will have difficulty doing so without
knowledge of Medicare’s lien and its benefit payments in this
matter.” JA at 307. On several occasions, the Medicare
contractor provided Taransky’s counsel with information
about Medicare’s conditional payments, which continued to
accumulate as Taransky’s lawsuit proceeded.

       After two years of litigation, Taransky settled her
claims against Larchmont for $90,000. In the settlement
agreement, she granted Larchmont a full release of “all past,
present and future claims,” including for “medical treatment”
and for “medical expense benefits” in connection with the
accident. JA at 271. The agreement also provided that any
liens or subrogation claims would be “satisfied and
discharged from the settlement proceeds,” and that Taransky
would indemnify Larchmont with respect to such claims. Id.
Relevant to this case, the agreement provided that the
indemnified liens “specifically include[], but [are] not limited
to, Medicare, Medicaid, workers compensation liens and/or
claims.” Id.

       On the heels of the settlement, Taransky filed a motion
in the New Jersey Superior Court requesting an order
“apportioning the proceeds of the settlement between various
elements of damages, but only to the extent necessary to
obtain specified documentation relevant to anticipated
administrative proceedings with the federal Centers for
Medicare and Medicaid Services.” JA at 267. Taransky
acknowledged that her lawsuit had sought damages for
“certain expenses for medical treatment,” and that some of
her treatment “was paid for through the federal government’s



                               6
Medicare program.” Id. In spite of these facts, Taransky
argued that the NJCSS precluded tort plaintiffs like herself
from recovering losses such as medical expenses that were
already paid by another source. Based on that premise, she
claimed that her Medicare expenses were not considered in
the settlement negotiations and were not included in the
settlement amount. JA at 268. Taransky’s counsel notified her
Medicare contractor of the motion, but did not make the
contractor or the Government a party to her state court case.
Neither Larchmont nor the Government responded to
Taransky’s motion.

       On November 20, 2009, the Superior Court granted
Taransky’s motion and entered an order for “good cause
shown,” stating that the settlement did not include any
Medicare expenses: “[N]o portion of the recovery obtained by
[Taransky] in this matter is attributable to medical expenses
or other benefits compensated by way of a collateral source.”
JA at 260, 261. The order specified that the settlement
amount was “allocated solely to recovery for bodily injury,
disability, pain and suffering, emotional distress, and such
non-economic and otherwise-uncompensated loss as plaintiff
may have suffered.” JA at 261.

                             B

      After Taransky settled her case, a Medicare contractor
demanded reimbursement of the $10,121.15 that the Medicare
program had paid on her behalf.2 Taransky refused to pay,

      2
          Medicare’s requested reimbursement deducted a
proportionate share of Taransky’s attorneys’ fees and the
incidental costs of procuring the settlement.




                             7
citing the NJCSS and the allocation order she had received
from the Superior Court. She also contended that the
Government could not demand reimbursement from a
tortfeasor’s liability settlement under the MSP Act because a
tortfeasor was not a “primary plan” under the meaning of the
statute, and that reimbursement would be inequitable because
she had not recovered any of her medical expenses.

       The Administrative Law Judge (ALJ) found against
Taransky on all claims.3 The ALJ ruled that the Government
could be reimbursed from the proceeds of a tort settlement,
and refused to recognize the state court’s allocation order
because it was not made “on the merits.” He also rejected
Taransky’s contention that the NJCSS precluded the
Government from reimbursement, reasoning that the NJCSS
did not apply to Medicare’s conditional payments. Finally,
the ALJ found that reimbursement would not be inequitable,
as he was unconvinced that the settlement truly did not
include damages for medical expenses.

       The Medicare Appeals Council affirmed the ALJ’s
opinion in its entirety, writing separately only to expound on
two points. First, it determined that the settlement in fact
included damages for Taransky’s medical expenses, finding
that Taransky’s counsel—who repeatedly demanded
confirmation of the amount of Medicare’s lien—had used

      3
        Before reaching the ALJ, Taransky appeared before
the Medicare Secondary Recovery Contractor (the first level
of appeal in the Medicare administrative process) and a
Medicare Qualified Independent Contractor (QIC) (the
second level of appeal), both of which held her liable for
reimbursement.




                              8
Medicare’s payments as a basis for the settlement. Second,
citing Mason v. Sebelius, 2012 WL 1019131 (D.N.J. Mar. 23,
2012), the Appeals Council ruled that the NJCSS did not
preclude tort victims from obtaining damages for Medicare
benefits in tort liability settlements.

       On July 16, 2012, Taransky filed suit in the United
States District Court for the District of New Jersey, reiterating
her claim that she was not responsible for reimbursing the
Medicare program from the proceeds of her settlement. As
she had argued during the administrative process, Taransky
contended that reimbursement was unauthorized by the MSP
Act and barred by the NJCSS. She also proffered two new
arguments: (1) that Medicare’s recovery should be limited to
a proportionate share of her settlement that reflected her
medical expenses; and (2) that the Government’s refusal to
acknowledge the Superior Court’s allocation order violated
her right to due process under the Fifth and Fourteenth
Amendments.

       The Government moved to dismiss the complaint for
lack of jurisdiction and for failure to state a claim, or in the
alternative, for summary judgment. The District Court
granted the motion, holding that it lacked jurisdiction over
Taransky’s proportionality and due process claims because
she had failed to raise them before the agency. It also
determined that the NJCSS did not apply to conditional
Medicare benefits, and that the MSP Act authorized
reimbursement from the settlement.

       This timely appeal followed.




                               9
                              II

      The District Court had jurisdiction over Taransky’s
exhausted claims pursuant to 42 U.S.C. §§ 405(g) and
1395ff(b).4 We have jurisdiction pursuant to 28 U.S.C. §
1291.

       We review the District Court’s dismissal order de
novo. See Ballentine v. United States, 486 F.3d 806, 808 (3d
Cir. 2007). Like the District Court, we accept the agency’s
factual findings if they are supported by substantial evidence
in the administrative record. Mercy Home Health v. Leavitt,
436 F.3d 370, 377 (3d Cir. 2006); see 42 U.S.C. § 405(g).
Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. Nat’l Labor Relations Bd.,
305 U.S. 197, 229 (1938)). We defer to the agency’s legal
interpretation of its implementing statute under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). See Leavitt, 436 F.3d at 377.

                                   III

      The reimbursement provision of the MSP Act
provides:

      [A] primary plan, and an entity that receives
      payment from a primary plan, shall reimburse

      4
         As discussed in section IV, infra, the District Court
correctly held that it lacked jurisdiction over Taransky’s
proportionality and due process arguments.




                             10
       the appropriate Trust Fund for any payment
       made by the Secretary . . . with respect to an
       item or service if it is demonstrated that such a
       primary plan has or had a responsibility to make
       payment with respect to such item or service.

42 U.S.C. § 1395y(b)(2)(B)(ii) (emphases added).

        Taransky contends that the MSP Act does not
authorize the Government to be reimbursed for conditional
Medicare payments from the proceeds of a tortfeasor’s
liability settlement. She advances three primary arguments on
appeal. First, she contends that a tortfeasor cannot be
considered a “primary plan” from which the Government may
receive payment under the MSP Act. Next, she argues that the
Government failed to prove that Larchmont had a
“demonstrated responsibility” to pay her medical expenses, as
the NJCSS prohibited her from obtaining damages for
medical expenses as part of the tort settlement. Finally, she
insists that the Government had to defer to the state court
order apportioning the settlement to exclude medical
expenses. We address each argument in turn.

                              A

       Taransky claims that a tortfeasor’s liability settlement
is not a “primary plan” within the meaning of the MSP Act,
citing only one relevant case: Mason v. American Tobacco
Co., 346 F.3d 36 (2d Cir. 2003). In Mason, the Second Circuit
found that an entity could be a primary plan under the MSP
Act only if it had a preexisting obligation to provide health
benefits—for example, via a contract to provide health
insurance. Id. at 42. The court ruled that “the trigger for
bringing a MSP claim is not the pendency of a disputed tort




                              11
claim, but the established obligation to pay medical costs
pursuant to a pre-existing arrangement to provide insurance
benefits.” Id. at 43 (emphases added) (citation and internal
quotation marks omitted). Following Mason, Taransky urges
us to define “primary plan” to include only health insurance
companies who have a preexisting contractual obligation to
pay for medical expenses.

       Although Taransky’s description of Mason is accurate,
she fails to acknowledge that the case was abrogated by the
December 2003 amendments to the MSP Act, which
explicitly broadened the definition of “primary plan” to
include tortfeasors.5 See Bio-Medical Applications of Tenn.,
Inc. v. Central States Se. & Sw. Areas Health & Welfare
Fund, 656 F.3d 277, 289–90 (6th Cir. 2011) (explaining
Congress’s intent to foreclose litigation on the definition of
“primary plan” via the 2003 amendments). The statute as
amended plainly includes tortfeasors and their insurance
carriers in its definition of “primary plan”:

      5
         Mason interpreted a version of the MSP statute that
defined a “primary plan” to include a “self-insured plan,” but
provided no guidance as to what constituted such a plan. See
42 U.S.C. § 1395y(b)(2)(A) (2001), amended by Medicare
Prescription Drug, Improvement, and Modernization Act of
2003, Pub. L. No. 108–173 § 301 (2003) (codified as
amended at 42 U.S.C. § 1395y(b)(2)(A)). Before the 2003
amendments, courts consistently rejected the Government’s
argument that tortfeasors were “self-insured plans” because,
rather than purchasing liability coverage from a separate
insurance carrier, they assumed their own risk of liability.
See, e.g., Thompson v. Goetzmann, 337 F.3d 489, 495 (5th
Cir. 2003); Mason, 346 F.3d at 42.



                             12
      [T]he term “primary plan” [includes a] . . .
      liability insurance policy or plan (including a
      self-insured plan) or no fault insurance . . . . An
      entity that engages in a business, trade, or
      profession shall be deemed to have a self-
      insured plan if it carries its own risk (whether
      by a failure to obtain insurance, or otherwise) in
      whole or in part.

42 U.S.C. § 1395y(b)(2)(A)(ii) (emphasis added). The
tortfeasor in Taransky’s case, Larchmont, is “[a]n entity that
engages in a business, trade, or profession,” and the record
demonstrates that it had a liability insurance policy.
Accordingly, despite not having a preexisting obligation to
pay for Taransky’s medical expenses, Larchmont is a primary
plan from whose payments—the settlement amount—the
Government may obtain reimbursement.6

                              B

       Next, Taransky contends that the Government has
failed to demonstrate, as a condition precedent for

      6
          In a related argument, Taransky claims that the
Government should not be reimbursed from her tort recovery,
but should pursue a separate claim against Larchmont and its
insurer. This is incorrect, however, because the MSP Act
explicitly allows the Government to recoup payments either
from the “primary plan” or “an entity that receives payment
from a primary plan.” 42 U.S.C. § 1395y(b)(2)(B)(ii).
Medicare’s “independent right of recovery [from the
beneficiary] is separate and distinct from [its] right of
subrogation.” Zinman, 67 F.3d at 845.




                              13
reimbursement, that Larchmont had a “responsibility to make
payment” for her Medicare expenses. 42 U.S.C. §
1395y(b)(2)(B)(ii); see also Glover v. Liggett Grp., Inc., 459
F.3d 1304, 1309 (11th Cir. 2006) (“[A]n alleged tortfeasor’s
responsibility for payment of a Medicare beneficiary’s
medical costs must be demonstrated before an MSP private
cause of action for failure to reimburse Medicare can
correctly be brought.”) (emphasis in original).

       The MSP Act provides that a beneficiary’s
reimbursement obligation may be demonstrated by
settlement:

       A primary plan’s responsibility for such
       payment may be demonstrated by . . . a payment
       conditioned upon the recipient’s compromise,
       waiver, or release (whether or not there is a
       determination or admission of liability) of
       payment for items or services included in a
       claim against the primary plan or the primary
       plan’s insured, or by other means.

42 U.S.C. § 1395y(b)(2)(B)(ii) (emphasis added); see also 42
C.F.R. § 411.22(b)(2). The Medicare Manual further
provides: “Medicare policy requires recovering payments
from liability awards or settlements . . . without regard to how
the settlement agreement stipulates disbursements should be
made. That includes situations in which the settlements do not
expressly include damages for medical expenses.” MSP
Manual, Ch. 7, § 50.4.4 (emphasis added).7


       7
        Policy statements and interpretive rules, such as those
included in the MSP Manual, do not have the force of law and



                              14
       Like the other courts of appeals that have considered
the issue, we hold that the fact of settlement alone, if it
releases a tortfeasor from claims for medical expenses, is
sufficient to demonstrate the beneficiary’s obligation to
reimburse Medicare. See Hadden v. United States, 661 F.3d
298, 302 (6th Cir. 2011); Mathis v. Leavitt, 554 F.3d 731, 733
(8th Cir. 2009). For this reason, we adopt the Sixth Circuit’s
analysis in Hadden, which held that “the scope of the plan’s
‘responsibility’ for the beneficiary’s medical expenses—and
thus of [the beneficiary’s] own obligation to reimburse
Medicare—is ultimately defined by the scope of [the
beneficiary’s] own claim against the third party” that is later
released in settlement. 661 F.3d at 302 (emphasis in original).
This rule comports with the text of the MSP Act and the
Medicare Manual. It also ensures “a beneficiary cannot tell a
third party that it is responsible for all of his medical
expenses, on the one hand, and later tell Medicare that the
same party was responsible for only [a compromise
percentage] of them, on the other.” Id.

       Applying these principles, Taransky’s settlement—
which released Larchmont from all her claims, including
those for medical expenses—renders her liable to the
Government. In Mathis, the Eighth Circuit found that a
beneficiary’s obligation under the MSP Act was triggered

are not given Chevron deference. See Christensen v. Harris
Cnty., 529 U.S. 576, 587 (2000). Those statements do,
however, “reflect ‘a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance.’” Fed. Express Corp. v. Holowecki, 552 U.S. 389,
399 (2008) (quoting Bragdon v. Abbott, 524 U.S. 624, 642
(1998)).




                              15
even when the parties did not specifically address obligations
to Medicare. 554 F.3d at 733. Here, Taransky’s settlement
agreement expressly anticipated Medicare’s lien, and
provided that reimbursement to the Medicare program would
be “satisfied and discharged from the settlement proceeds.”
JA at 271. There is also substantial evidence to support the
agency’s factual finding that the settlement included the costs
of Taransky’s medical care. Before entering into the
settlement agreement, Taransky’s counsel repeatedly
contacted her Medicare contractor to determine the amount of
the program’s lien, so he could use the amount to justify her
settlement demand. See, e.g., JA at 294 (stating counsel’s
intent to “negotiate this case using [an estimate of Medicare’s
benefits] as a basis for potential settlement”); JA at 295 (“I
cannot negotiate the case unless I know the full amount of
Medicare’s claim.”). After the settlement, counsel certified
that Taransky’s lawsuit included “certain expenses for
medical treatment,” and “[s]ome of the medical treatment for
the personal injuries suffered by [Taransky] was paid for
through the federal government’s Medicare program.” JA at
267. Given the substantial evidence that Taransky was
compensated for her medical costs, she cannot now hide
behind the lump sum settlement to deprive the Government of
the reimbursement it is owed.

                              1

       In response, Taransky contends that her settlement
amount could not have included her medical costs as a matter
of law, as Medicare payments are a “collateral source” of
benefits that may not be obtained from a tortfeasor under the
NJCSS. It would follow that the MSP Act’s reimbursement
provision was never triggered, and that the Government’s
request—rather than preventing her from obtaining a double



                              16
recovery—would strip her of any recoupment of her medical
expenses.

       The New Jersey Supreme Court has not considered
whether the NJCSS operates to prevent a plaintiff from
recovering Medicare payments in a tort suit; thus, “we must
attempt to predict how that tribunal would rule.” U.S.
Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93
(3d Cir. 1996). In doing so, we may consider the decisions of
state intermediate appellate courts, which, “[a]lthough not
dispositive, . . . should be accorded significant weight in the
absence of an indication that the highest state court would
rule otherwise.” Orson, Inc. v. Miramax Film Corp., 79 F.3d
1358, 1373 n.15 (3d Cir. 1996).

        Several decisions by the New Jersey Appellate
Division inform our analysis. In Lusby, the Appellate
Division held that the NJCSS did not bar the plaintiff from
recovering his medical expenses as part of tort damages, even
though those costs had been provisionally covered by the
state Medicaid program. 642 A.2d at 1061. The court rested
its decision on the statutory purpose of the NJCSS:

      The legislative determination . . . was
      apparently not only to prevent plaintiffs from
      obtaining a double recovery but also . . . to shift
      the burden, at least to some extent, from the
      liability and casualty insurance industry to
      health and disability third-party payers.

      We think it plain, however, that neither of these
      purposes is advanced by application of the
      collateral source statute where, as here, a
      plaintiff could not in any case pocket a double




                              17
       recovery for medical expenses for the reason
       that his entire recovery is subject to Medicaid’s
       reimbursement rights.

Id. (emphasis added). The court further emphasized that the
NJCSS’s purposes were not served “when the ultimate burden
is shifted from the tortfeasor’s liability carrier to a
governmentally-funded secondary payer.” Id. Since Lusby,
panels of the Appellate Division have consistently found that
application of the NJCSS turns on whether the government
benefits provided are reimbursable: if they are, then the
payments are considered conditional, and are not collateral
benefits that may not be recovered pursuant to the statute.
Compare Thomas v. Toys “R” Us, Inc., 660 A.2d 1236, 1246
(N.J. Super. Ct. App. Div. 1995) (finding that Social Security
payments are a collateral source of benefits under the NJCSS
because the government has no right to their reimbursement),
with Woodger v. Christ Hosp., 834 A.2d 1047, 1051 (N.J.
Super. Ct. App. Div. 2003) (“We have also held that benefits
such as Medicaid, subject to reimbursement by the plaintiff to
the payer from the proceeds of a negligence judgment or
settlement, are similarly not includable as a collateral source
because they do not constitute double recovery.”) (emphasis
added).

       While Lusby involved a state Medicaid statute,8 its
reasoning applies with equal force in the Medicare context.

       8
         Under the state-law provision considered in Lusby,
any recipient of Medicaid funds who brought a tort action
against a third party

       shall immediately reimburse the division in full
       from the proceeds of any settlement, judgment,



                              18
The MSP Act makes clear that Congress intended the
Medicare program to serve only as a secondary payer:
Medicare may pay a beneficiary’s medical bills only if a
primary plan cannot be expected to pay promptly, and
beneficiaries are obligated to reimburse Medicare once a
responsible primary plan has been identified. 42 U.S.C. §
1395y(b)(2)(B)(ii); Fanning v. United States, 346 F.3d 386,
388–89 (3d Cir. 2003). Medicare’s benefits, then, are
reimbursable and conditional. For that reason, the NJCSS,
which operates only when the beneficiary is “entitled to
receive benefits” from another source, N.J. Stat. Ann. §
2A:15–97, is inapplicable.

       As further support for this conclusion, the Appellate
Division extended Lusby’s logic to Medicare payments in

      or other recovery in any action or claim initiated
      against any such third party subject to a pro rata
      deduction for counsel fees, costs, or other
      expenses incurred by the recipient or the
      recipient’s attorney.

N.J. Stat. Ann. § 30:4D–7.1(b).

       Taransky attempts to distinguish the Medicaid statute
at issue in Lusby from the MSP Act, contending that
Medicaid provided for an unqualified right to reimbursement,
while the MSP Act requires the Government to demonstrate
responsibility for payment. The Lusby court, however, was
unconcerned with the unconditional nature of Medicaid’s
reimbursement provision, and simply considered whether
Medicaid’s payments were reimbursable. Taransky’s
distinction is therefore unavailing.




                             19
Jackson v. Hudson Ct., LLC, No. L–415–07, 2010 WL
2090036 (N.J. Super. Ct. App. Div. May 24, 2010). 9 There, in
a case similar to Taransky’s, the Medicare beneficiary sought
an order from the motions judge that no portion of her
personal injury settlement was attributable to medical
expenses. Id. at *1. On appeal, the Appellate Division
affirmed the motions judge’s denial. Analogizing Lusby, the
court found that Medicaid liens were “virtually identical to
Medicare liens,” and that Medicare, as a secondary payer,
“ha[d] a nearly unqualified right to reimbursement.” Id. at *3.
Because of this reimbursement right, the claimant, even if she
were able to recover medical expenses from another source,
“could not pocket them and hence cannot obtain the ‘double
recovery’ that the collateral source statute is designed to
avoid.” Id. We predict that the New Jersey Supreme Court
would adopt this sound reasoning when considering the
NJCSS’s application to Medicare liens.

       By contrast, only one case supports Taransky’s
position: Early v. Wal-Mart Stores, Inc., Civ. No. 01–cv–
5531 (D.N.J. July 28, 2003), in which the district court, in an
unpublished opinion, ruled that Medicare benefits constituted
a collateral source under the NJCSS. See JA at 208. There,
the court found that the plaintiff had already recovered the
cost of the victim’s medical treatment from Medicare, and
concluded that the NJCSS precluded the plaintiff from
obtaining the amount from the tortfeasor. See JA at 211.
       9
         While unpublished opinions are not binding on New
Jersey courts, see Stengart v. Loving Care Agency, Inc., 990
A.2d 650, 655 n.4 (N.J. 2010), we may refer to them when
predicting state law. See Packard v. Provident Nat’l Bank,
994 F.2d 1039, 1042 (3d Cir. 1993).




                              20
        While Early is certainly on point, we find the case
unpersuasive for two reasons. First, the decision turned on a
flawed simplification of New Jersey law: the district court, in
predicting how the New Jersey Supreme Court would rule,
held that the NJCSS “requires that tort judgments be reduced
by the amount of any recovery from other sources.” Id.
(emphasis added). This conclusion contradicted the holdings
of prior intermediate court decisions, such as Lusby and
Woodger, which received no attention in the opinion. Instead,
the court relied on the New Jersey Supreme Court’s decision
in Perreira v. Rediger, 778 A.2d 429, 432 (N.J. 2001), which
focused on a very different question: whether a health
insurance company could recover funds from a tortfeasor
pursuant to the NJCSS. See JA at 210–11. The Perreira court
held that the NJCSS barred an insurance company’s recovery
because the statute aimed to shift the burden of payment from
liability insurers to the health industry. See 778 A.2d at 436
(citing, inter alia, Lusby, 642 A.2d at 1061). However, as
Lusby made clear, this statutory purpose is not served when a
beneficiary shifts the burden of payment from a tortfeasor to
the government. See 642 A.2d at 1061. Second, the Early
court relied in large part on the Fifth Circuit’s decision in
Thompson v. Goetzmann, 337 F.3d 489, 500 (5th Cir. 2003),
which held that the Medicare program could not be
reimbursed from the proceeds of a tort settlement. See JA at
211. Goetzmann, however, relied on the Fifth Circuit’s
conclusion that tortfeasors were not a “primary plan” under
the MSP Act—a conclusion that was abrogated by the 2003
amendments to the statute for the reasons we explained in
Section III.A, supra.

       Informed by the consistent line of Appellate Division
decisions, and finding no persuasive rulings to the contrary,




                              21
we predict that the New Jersey Supreme Court would hold
that Medicare payments, because of their conditional nature,
do not constitute a collateral source of benefits under the
NJCSS. Accordingly, Taransky may not rely on the NJCSS to
avoid reimbursing the Government for Medicare payments it
has made on her behalf.10

                               2

       Taransky also argues that, regardless of our
interpretation of the NJCSS, the Government must defer to
the New Jersey Superior Court’s apportionment order in
accordance with Medicare’s own regulations. Because the
state court’s order provides that no portion of the settlement
recovery is attributable to medical expenses, Taransky claims
that she has no obligation to pay.

       Under the MSP Manual, “[t]he only situation in which
Medicare recognizes allocations of liability payments to
nonmedical losses is when payment is based on a court order
on the merits of the case.” MSP Manual, Ch. 7, § 50.4.4
(emphasis added). Further, “[i]f the court or other adjudicator
of the merits specifically designate[s] amounts . . . not related
to medical services, Medicare will accept the Court’s
designation.” Id. In deference to the court’s substantive
decision, “Medicare does not seek recovery from portions of
court awards that are designated as payment for losses other
than medical services.” Id.


       10
        Because the NJCSS does not conflict with the MSP
Act, the parties’ arguments regarding whether the Act
preempts the NJCSS are moot.




                               22
        As the ALJ correctly found, the Superior Court’s
apportionment order was not “on the merits,” and need not be
recognized by the agency. A court order is “on the merits”
when it is “delivered after the court has heard and evaluated
the evidence and the parties’ substantive arguments.” Black’s
Law Dictionary 1199 (9th ed. 2009); cf. Greene v.
Palakovich, 606 F.3d 85, 98 (3d Cir. 2010) (finding, in a
criminal case, that “on the merits” means the state court
“acted on the substance of [the] claim”), aff’d sub nom.
Greene v. Fisher, 132 S. Ct. 38 (2011); Thomas v. Horn, 570
F.3d 105, 115 (3d Cir. 2009) (holding that state proceedings
occur “on the merits” “when a state court has made a decision
that 1) finally resolves the claim, and 2) resolves the claim on
the basis of its substance”). Here, the state court did not
adjudicate any substantive issue in the primary negligence
suit. Indeed, in her motion for the order, Taransky clarified
that she sought an apportionment not to resolve any
outstanding issue in her suit, but “only to the extent necessary
to obtain specified documentation relevant to anticipated
administrative proceedings with the federal Centers for
Medicare and Medicaid Services.” JA at 267. The state court,
in effect, rubber stamped her request. Taransky’s motion was
uncontested, issued pursuant to a stipulation between
Taransky and Larchmont, and prepared and submitted by
Taransky’s counsel for the judge’s signature. This order is the
antithesis of one made on the merits.

        Taransky counters with four arguments, none of which
we find persuasive. First, she contends that the agency’s
definition of “on the merits” is improperly narrow because it
ignores “‘merits’ determinations,” such as dismissal and
summary judgment orders, “that do not involve a trial to
verdict.” Taransky Br. at 23. But these orders involve an




                              23
adversarial exchange regarding the substance of a suit. By
contrast, the allocation order in the present case was
unopposed, the product of a prearranged agreement between
Taransky and Larchmont. Taransky understandably wanted to
maximize her recovery by excluding medical expenses from
the settlement, and Larchmont, which had been insulated
from further obligations pursuant to the terms of the
settlement, was disinterested by that time.

        Second, Taransky faults the Government for failing to
contest her allocation motion, claiming that the Government
cannot “rely on [its] own inaction as the sole basis for
criticizing the court’s ruling.” Taransky Br. at 25. We find
this argument unavailing because, while Taransky notified
her Medicare contractor of the motion, she never made the
Government a party to her suit. Furthermore, neither the MSP
Act nor its implementing regulations require the Government
to intervene in state proceedings where such post-settlement
allocation motions are made.

       Third, Taransky notes that the Medicare Appeals
Council’s treatment of the Superior Court’s allocation order is
inconsistent with previous determinations by QICs and
ALJs11 that have recognized the validity of almost identical
orders. But the Appeals Council is free to depart from these
lower agency rulings without concern, as only its decisions
have legal significance. “Nowhere does any policy or
regulation suggest that the [Appeals Council] owes any

      11
          As indicated supra note 3, the QIC constitutes the
second level of appeal in the Medicare administrative process.
An unsatisfied claimant then proceeds to the ALJ, the third
level of appeal.




                              24
deference at all to—much less is bound by—decisions of
lower reviewing bodies addressing different disputes between
different parties.” Almy v. Sebelius, 679 F.3d 297, 310 (4th
Cir. 2012). It is not arbitrary and capricious for the agency’s
highest body “to make final determinations that may [be] at
odds with prior . . . decisions that did not carry the full
imprimatur of the Secretary’s authority.” Id. at 311.

        Taransky’s fourth argument—her strongest—cites
Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), in which
the Eleventh Circuit recognized a state court’s post-settlement
allocation order as a judgment “on the merits.” Id. at 1339
n.22. In that case, the plaintiffs (the children of the decedent
and the decedent’s estate) challenged the Government’s right
under the MSP Act to recover medical costs from the
proceeds of a liability settlement. Id. at 1330. In a demand
letter, the decedent’s children asserted claims for wrongful
death against their father’s nursing home, alleging abuse and
neglect under state law; the decedent’s estate separately
sought damages for both wrongful death and medical costs.
Id. at 1337 & n.13. The ensuing lump sum settlement of both
suits was then apportioned between the children and the estate
in a probate order. Id. at 1333–34.

       The Eleventh Circuit held that the Medicare program
could be reimbursed only from the amount of the settlement
apportioned to the estate, as only the estate’s claims included
medical expenses. Id. at 1337. By contrast, the Government
could not demand reimbursement from the children’s
settlement portion because their claims were distinct: they
involved only “non-medical, tort property claims”—“a
property right belonging to the child[, n]ot the Secretary.” Id.
The Eleventh Circuit determined that the Government could
not disregard the probate order, as it was an “allocation based



                              25
on a court order.” Id. at 1339 & n.22 (internal quotation
marks omitted). In a footnote, it noted that there were adverse
parties: “the estate and children on one hand, and the
Secretary on the other.” Id. at 1339 n.22. Similarly, the
allocation decision was on the merits: “the merits of the
Secretary’s position versus the merits of those of the estate
and children.” Id.

       While this language in Bradley supports Taransky’s
legal argument, we find that case factually distinguishable
from this one. Here, Taransky was the sole claimant of the
settlement funds. Unlike the decedent’s children in Bradley,
Taransky pursued medical expenses as part of her tort suit. In
addition, her motion sought to allocate her settlement among
the various elements of damages in her suit, and not, as in
Bradley, to apportion a lump sum amount between separate
suits brought by distinct parties. Thus, unlike in Bradley, the
state court here did not adjudicate a substantive issue (i.e.,
how funds should be divided between the parties before the
court), and the Government here attempts only to be
reimbursed from funds that were indisputably paid to a
Medicare beneficiary.

       For these reasons, we hold that the Medicare Appeals
Council did not err in finding that the state court’s order,
which was entered upon a stipulation of the parties, did not
constitute a court order on the merits of the case.
Furthermore, given the substantial evidence supporting the
Appeals Council’s finding that Taransky’s settlement
included medical expenses, we conclude that she remains
responsible for reimbursing the Government in spite of the
Superior Court’s allocation order.




                              26
                               IV

        Having addressed Taransky’s colorable arguments, we
turn only briefly to her remaining claims, which we dismiss
out of hand for lack of jurisdiction. Taransky argues that,
even if she is liable for her medical expenses, the “equity and
good conscience” exception in 42 U.S.C. § 1395gg(c)
provides that the Government would be entitled not to full
recovery of its payments, but only to a proportionate share of
her recovery. Because Taransky never raised this argument
before the agency, the District Court rightly held that it lacked
jurisdiction to adjudicate it. See 42 U.S.C. §§ 405(g)–(h); see
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1,
15 (2000) (“§ 405(g) contains the nonwaivable and
nonexcusable requirement that an individual present a claim
to the agency before raising it in court.”).

       Taransky responds that this argument need not be
exhausted because she has not made a novel “‘claim’ for any
benefits,” but merely presented “an example of a judicially-
endorsed method to resolve problems of equity and good
conscience . . . —an issue specifically identified by [her]
counsel in the administrative appeals process.”12 Taransky Br.
at 37 n.10 (citation omitted). We disagree. During the
administrative process, Taransky argued only that the


       12
          Taransky makes this jurisdictional argument in a
footnote, which is another reason why we refuse to consider it
on the merits. See John Wyeth & Bro. Ltd. v. CIGNA Int’l
Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments
raised in passing (such as, in a footnote), but not squarely
argued, are considered waived.”).




                               27
Government could not recover its expenses at all—not that it
erred in calculating the amount of its recovery.

        Second, Taransky argues that the District Court had
jurisdiction over her due process claim pursuant to 28 U.S.C.
§ 1331, as the claim arises from the U.S. Constitution, not the
Medicare Act. She clarifies that she is not challenging the
agency’s adverse determination, but its actions “in
implementing that administrative process”—specifically, that
the agency “consistently ignore[s] the limitations of the [MSP
Act], disregard[s] its own policies and procedures, and
routinely exceed[s] [its] statutory authority by demanding
repayment from beneficiaries without meeting the explicit
statutory conditions required for reimbursement.” Taransky
Br. at 53.

        The Medicare Act prevents courts from exercising
jurisdiction under 28 U.S.C. § 1331 when a claim “arises
under” the statute—a concept that has been read broadly by
the Supreme Court. See Heckler v. Ringer, 466 U.S. 602,
614–15 (1984) (interpreting 42 U.S.C. §§ 1395ii and 405(h)).
A constitutional claim “arises under” the MSP Act when the
statute “provides both the standing and the substantive basis
for the presentation of [the plaintiffs’] constitutional
contentions.” Weinberger v. Salfi, 422 U.S. 758, 760–61
(1975) (interpreting § 405(h) for the Social Security Act);
Heckler, 466 U.S. at 615 (extending Weinberger to the
Medicare Act).13


       13
         A narrow exception to this general rule is when an
agency provides “no review at all” for the claims at issue. See
Ill. Council, 529 U.S. at 19 (describing the exception to §
405(h) created by Bowen v. Michigan Academy of Family



                              28
        That is the case here. Taransky’s constitutional claim
is rooted in, and derived from, the Medicare Act. The premise
of her constitutional claim—that the agency has “fail[ed] to
follow the law controlling Medicare’s reimbursement rights,”
Taransky Br. at 53—is an artful attempt to rephrase her
primary argument, namely, that the agency has misinterpreted
its right to reimbursement under the MSP Act. “To contend
that such an action does not arise under the Act whose
benefits are sought is to ignore both the language and the
substance of the complaint and judgment.” Weinberger, 422
U.S. at 761. Because Taransky’s due process claim “arises
from” the MSP Act, the District Court did not err in requiring
her to exhaust the claim pursuant to 42 U.S.C. § 405(g)
before seeking judicial review.14



Physicians, 476 U.S. 667 (1986)). The Michigan Academy
exception does not apply here because administrative review
of Taransky’s due process claim was available under 42
U.S.C. § 405(g).
       14
          Taransky’s reliance on Mathews v. Eldridge, 424
U.S. 319 (1976), to establish federal question jurisdiction is
also misplaced. That case does not, as Taransky contends, set
forth a blanket rule exempting due process challenges from
exhaustion. Rather, Mathews notes that the agency may be
deemed to have waived the exhaustion requirement where the
claimant’s constitutional challenge (i.e., entitlement to a pre-
deprivation hearing) was collateral to his substantive
entitlement claim, and exhaustion (i.e., a post-deprivation
hearing) rendered the constitutional argument futile. Id. at
330–31. Here, Taransky’s due process claim is almost
identical to her substantive argument, and there is no



                              29
                               V

       For the reasons stated, we hold that the MSP Act
authorizes the Government to seek reimbursement from
Taransky’s settlement, as she has received funds from a
primary plan under the statute that has a demonstrated
responsibility for her medical expenses. Taransky can invoke
neither the NJCSS nor the Superior Court’s allocation order
to avoid her reimbursement obligation, for the NJCSS did not
prevent her from obtaining damages for medical expenses
from Larchmont, and the Government need not recognize the
allocation order because it was not on the merits. Finally, we
hold that the District Court properly determined that it did not
have jurisdiction over Taransky’s unexhausted proportionate
payment and due process claims. We will affirm the District
Court’s order dismissing Taransky’s suit.




evidence that the agency cannot review the claim in the
administrative process.




                              30
