     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 5, 2020
                                2020COA38

No. 18CA1646, Garcia v. Centura Health Corporation —
Creditors and Debtors — Hospital Liens — Lien for Hospital
Care

     A division of the court of appeals considers whether the

Colorado hospital lien statute permits a lien against a patient when

Medicare is a wrongfully injured patient’s primary health insurance,

and the hospital has not billed Medicare. See § 38-27-101, C.R.S.

2019. The division concludes that (1) the statute requires a

hospital to bill Medicare before filing a lien; (2) the legislative history

supports this interpretation; and (3) this interpretation does not

conflict with federal law.

     This decision is contrary to a recent decision by another

division of the court of appeals. See Harvey v. Centura Health Corp.

& Catholic Health Initiatives, 2020 COA 18.
COLORADO COURT OF APPEALS                                      2020COA38

Court of Appeals No. 18CA1646
City and County of Denver District Court No. 17CV32645
Honorable Ross B.H. Buchanan, Judge


Jina Garcia,

Plaintiff-Appellant,

v.

Centura Health Corporation,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE RICHMAN
                         Freyre and Grove, JJ., concur

                          Announced March 5, 2020


Sawaya, Rose, McClure & Wilhite, P.C., Robert E. Caldwell, Denver, Colorado;
The Hannon Law Firm, LLC, Kevin S. Hannon, Denver, Colorado, for Plaintiff-
Appellant

Hall, Render, Heath & Lyman, P.C., Melvin B. Sabey, Denver, Colorado, for
Defendant-Appellee

Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood,
Colorado for Amicus Curiae Colorado Trial Lawyers Association
¶1    Under Colorado’s hospital lien statute, section 38-27-101,

 C.R.S. 2019, as amended in 2015, may a hospital place a lien on a

 person (1) who has been injured as a result of negligence or other

 wrongful acts and (2) whose primary health insurance is Medicare,

 without first billing Medicare? We answer “no” because in

 amending the statute, the General Assembly sought to protect

 insured patients from unnecessary liens — not to protect maximum

 payments to hospitals serving insureds.

¶2    Consequently, we reverse the district court order dismissing

 the claim of plaintiff, Jina Garcia, that defendant, Centura Health

 Corporation (Centura), violated the hospital lien statute when it

 filed a hospital lien against her before billing her primary health

 insurance. We also reverse the court’s denial of Garcia’s motion for

 summary judgment as to her individually.

               I. The Hospital Lien Statute and Medicare

                     A. Prior Version of Lien Statute

¶3    Before 2015, the hospital lien statute provided, as relevant

 here, that “[e]very hospital . . . which furnishes services to any

 person injured as the result of the negligence or other wrongful acts

 of another person . . . shall . . . have a lien for all reasonable and


                                     1
 necessary charges for hospital care upon the net amount payable . .

 . as damages on account of such injuries.” § 38-27-101, C.R.S.

 2014. Liens were limited in that they could not be filed to seek

 unreasonable or unnecessary charges, or any charges incurred

 after a judgment or settlement, or filed against persons covered by

 workers’ compensation; and the lien created under the statute was

 junior to an attorney’s lien.

¶4    A division of this court interpreted the statute in the context of

 its purpose and its interaction with federal Medicare in Wainscott v.

 Centura Health Corp., 2014 COA 105, an opinion on which the

 district court heavily relied. The division recognized that the intent

 of the statute was “to protect hospitals that provide medical services

 to an injured person who may not be able to pay but who may later

 receive compensation for such injuries which includes the cost of

 the medical services provided.” Wainscott, ¶ 29 (emphasis added)

 (quoting Rose Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 903 P.2d

 15, 16 (Colo. App. 1994)).

¶5    The Wainscott division rejected the plaintiffs’ claim that the

 failure of the hospital to disclose to them that it would not bill

 Medicare constituted a violation of the Colorado Consumer


                                    2
Protection Act. Affirming the district court’s ruling that the hospital

did not have a duty to inform them that it was going to “bill in a

certain way,” the division observed that under federal law, Medicare

serves as a secondary payer “when another insurer is responsible

for providing primary coverage.” Id. at ¶¶ 66-68; see 42 U.S.C.

§ 1395y(b)(2) (2018). Accordingly, Wainscott recognized that under

federal law, hospitals must bill a tortfeasor’s liability insurer before

billing Medicare. Wainscott, ¶ 71; see 42 C.F.R. § 489.20(g) (2019).

Additionally, Wainscott noted that Medicare will make conditional

payments to the hospital if the liability insurer “has not made or

cannot reasonably be expected to make payment . . . promptly . . .

.” 1 Wainscott, ¶ 70 (quoting 42 U.S.C. § 1395y(b)(2)(B)(i)); see 42

C.F.R. § 411.52(a)(1) (2019). But Wainscott was not interpreting the


1 The Medicare payments are referred to as “conditional” because if
a liability insurer is ultimately found responsible, as demonstrated
by a judgment, settlement, award, payment, etc., any Medicare
payments made to a hospital must be repaid to Medicare by the
liability insurer or the entity that receives payment from the liability
insurer. 42 U.S.C. § 1395y(b)(2)(B)(ii) (2018); 42 C.F.R. § 411.22
(2019). And “promptly” is defined as within 120 days after the
earlier of (1) the date a claim is filed with a liability insurer or a
hospital lien is filed or (2) the date the patient is discharged from
the hospital. 42 C.F.R. § 411.50(b) (2019). This timeframe is
referred to as the “promptly period.” Wainscott v. Centura Health
Corp., 2014 COA 105, ¶ 70.

                                    3
 language now in the statute, which requires hospitals to bill the

 “primary medical payer of benefits” before filing a lien,

 § 38-27-101(1), C.R.S. 2019, nor was it juxtaposing that language

 against the federal description of Medicare as a “secondary payer.”

 Thus, we do not find Wainscott informative on the statutory

 interpretation question now before us.

                  B. Current Version of Lien Statute

¶6    Seeking to curb the use of liens against accident victims who

 could pay their hospital bills through their own insurance, the

 Colorado legislature substantially amended the hospital lien statute

 in 2015. Ch. 260, sec. 1, § 38-27-101, 2015 Colo. Sess. Laws 981-

 82. As amended, and as relevant here, the statute provides:

            (1) Before a lien is created, every hospital . . .
            which furnishes services to any person injured
            as the result of the negligence or other
            wrongful acts of another person . . . shall
            submit all reasonable and necessary charges
            for hospital care or other services for payment
            to the property and casualty insurer and the
            primary medical payer of benefits available to
            and identified by or on behalf of the injured
            person, in the same manner as used by the
            hospital for patients who are not injured as the
            result of the negligence or wrongful acts of
            another person, to the extent permitted by state
            and federal law.



                                    4
          (2) If no payers of benefits are identified for the
          injured person due to lack of insurance, a lien
          may be created.

          ....

          (7) An injured person who is subject to a lien
          in violation of this section may bring an action
          in a district court to recover two times the
          amount of the lien attempted to be asserted.

          ....

          (9) For purposes of this section, “payer of
          benefits” means:

          [any of nine categories of insurance providers,
          which includes health insurance providers
          Medicare and Medicaid]. 2


2 Section 38-27-101(9), C.R.S. 2019, defines “payers of benefits” as
follows:

          (a) An insurer;

          (b) A health maintenance organization;

          (c) A health benefit plan;

          (d) A preferred provider organization;

          (e) An employee benefit plan;

          (f) A program of medical assistance under the
          “Colorado Medical Assistance Act” [Medicaid]. .
          .;

          (g) The children’s basic health plan . . . ;


                                   5
 § 38-27-101 (emphases added).

¶7    There is no question that, under the current version of the

 statute, hospitals must bill a patient’s primary private health

 insurance provider (such as BlueCross/BlueShield) before filing a

 lien. But in this case and in others currently working their way

 through Colorado courts, Centura seeks to dodge the pre-billing

 requirement as it would apply to Medicare. Arguing that Medicare

 is not a “primary” medical payer of benefits because Medicare

 defines itself as a secondary payer in cases of wrongful injury,

 Centura seeks to recover the full amount of its hospital bills from

 accident victims through filing a lien, rather than the discounted

 amount that Medicare would pay if it were billed. We reject the

 notion that the General Assembly intended the 2015 amendments

 to create such a loophole.

                  II. Factual and Procedural History




           (h) Any other insurance policy or plan; or

           (i) Any other benefit available as a result of a
           contract entered into and paid for by or on
           behalf of an injured person.

                                   6
¶8    The following facts are undisputed. Garcia was treated at

 Centura-St. Anthony North (the hospital) for injuries sustained in

 an automobile accident on April 10, 2017. She told the hospital at

 the time of her treatment that Medicare, Medicaid, and Progressive

 (her property and casualty insurance carrier) were her insurers.

 Centura’s agent billed Progressive four days later and was informed

 that Garcia’s policy did not cover medical care.3 Less than a month

 after Garcia’s hospital visit, Centura filed a lien against her for

 $2170.35, without first billing Medicare. On May 24, Centura

 notified Garcia that the charges would not be billed to Medicare or

 Medicaid at that time.

¶9    In July, exercising the right of action granted by section

 38-27-101(7), Garcia filed a complaint against Centura, individually

 and on behalf of a class of others similarly situated, seeking, as

 relevant here, an award of twice the amount of the hospital lien(s)

 asserted.




 3The parties dispute whether the hospital also billed the at-fault
 party’s liability insurer, but we conclude that dispute is not
 material to our decision.

                                     7
¶ 10   In September, Centura released the lien and moved to dismiss

  Garcia’s claims. 4 Garcia cross-moved for summary judgment. The

  district court ruled in favor of Centura on both motions, finding a

  potential conflict between section 38-27-101 and federal law and

  thus narrowly interpreting the term “primary medical payer of

  benefits” to exclude Medicare and Medicaid.

                         III. Standard of Review

¶ 11   We review de novo the district court’s grant of Centura’s

  motion to dismiss and its denial of Garcia’s motion for summary

  judgment. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.

  2004). We begin by interpreting the hospital lien statute, as

  amended in 2015, de novo. See Colo. Med. Bd. v. McLaughlin, 2019

  CO 93, ¶ 22. In doing so, we first consider whether the General

  Assembly intended Medicare to be a “primary medical payer of

  benefits” as applied to Garcia under the statute, and we conclude

  that it did. We then consider the consequences of that




  4The record does not reveal why Centura released the lien.
  Centura eventually billed Medicare on October 20 — 193 days after
  Garcia was treated at the hospital.

                                    8
  interpretation, including whether requiring Centura to bill Medicare

  is “permitted by state and federal law.” § 38-27-101(1).

                IV. Interpreting the Hospital Lien Statute

¶ 12   “Our fundamental responsibility in interpreting a statute is to

  give effect to the General Assembly’s purpose or intent in enacting

  the statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To

  effect that intent, we look first to the statute’s plain language,

  construing words and phrases “according to grammar and common

  usage” and considering the statute as a whole. Jefferson Cty. Bd. of

  Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010).

¶ 13   If the statute lends itself to reasonable alternative

  constructions, “a court may apply other rules of statutory

  construction and look to pertinent legislative history to determine

  which alternative construction is in accordance with the objective

  sought to be achieved by the legislation.” People v. Terry, 791 P.2d

  374, 376 (Colo. 1990).

¶ 14   We presume that the General Assembly intended a just and

  reasonable result and that “[p]ublic interest is favored over any

  private interest.” § 2-4-201(1)(c), (e), C.R.S. 2019.

                            A. Plain Language


                                     9
¶ 15   Here, based on the plain language in subsections (1) and (9) of

  section 38-27-101, and because the General Assembly used the

  conjunctive “and” in subsection (1), we conclude that the General

  Assembly intended to require hospitals to bill at least two insurers,

  when they are identified by the injured person, before filing a lien:

  (1) a property and casualty insurer (liability insurer) and (2) a

  patient’s primary medical payer of benefits. “Primary medical payer

  of benefits” is not a defined term in the statute. However, “payer of

  benefits” is defined in the statute, and the descriptor “medical”

  narrows that list to medical or health insurers — not liability

  insurers. See § 38-27-101(9).

¶ 16   A patient’s “primary” health insurer is, according to common

  usage, the first or principal health insurer to be billed for medical

  treatments. See Merriam-Webster Dictionary,

  https://perma.cc/R9FU-28FF (defining “primary” as “first in order

  of time” or “of first rank”). When a patient is insured by only

  Medicare and Medicaid, Medicare is the patient’s primary health

  insurance. See § 25.5-4-300.4, C.R.S. 2019 (“It is the intent of the

  general assembly that medicaid be the last resort for payment . . .

  and that all other sources of payment are primary to medical


                                    10
  assistance provided by medicaid.”). It is undisputed that Medicare

  is Garcia’s primary health insurance.5 It follows that, under the

  plain language of the statute, when Medicare is the patient’s

  primary health insurer, the General Assembly intended hospitals to

  bill Medicare before filing a lien against the patient.

¶ 17    We recognize that a division of this court recently reached a

  different conclusion in Harvey v. Centura Health Corp. & Catholic

  Health Initiatives, 2020 COA 18. In that case, the division viewed

  the term “primary” through the lens of federal Medicare law and

  concluded that the General Assembly intended to limit a hospital’s

  pre-lien billing requirements when a patient injured as a result of

  negligence of another person is a Medicare beneficiary. The division

  considered the statute to be unambiguous and did not consider the

  legislative history. 6

¶ 18    Given that two divisions of this court deduce alternative

  constructions from the plain language of the statute, we look to the


  5 Medicare is the federal health insurance program for those who
  qualify due to age, disability, or disease. See U.S. Dep’t of Health &
  Human Servs., Ctrs. For Medicare & Medicaid Servs., What’s
  Medicare?, https://perma.cc/8EZL-322Y.
  6 We note that Harvey’s case differed from Garcia’s in that Harvey’s

  auto insurance policy included medical coverage.

                                     11
  evolution of the language of the statute to determine which

  alternative construction is in accord with the legislature’s objective.

  See Three Bells Ranch Assocs. v. Cache La Poudre Water Users

  Ass’n, 758 P.2d 164, 172 (Colo. 1988) (noting that successive drafts

  of a bill may aid in determining legislative intent). We also consider

  the consequences of our construction. See Martin, 27 P.3d at 851.

                          B. Legislative History

¶ 19   At the outset, we observe that nothing in the legislative history

  suggests that the General Assembly intended the word “primary” to

  be interpreted as it is used in the federal Medicare secondary payer

  provisions. In fact, we find no indication that the legislature

  intended to exclude Medicare beneficiaries from the prerequisite

  health insurance billing requirement for a hospital lien. For these

  reasons, and because the federal definition of Medicare as a

  “secondary payer” does not control the meaning of the statute’s

  phrase “primary medical payer of benefits,” we disagree with the

  analysis in Harvey.

¶ 20   On April 9, 2015, Colorado Republican Senator Bill L. Cadman

  and Democratic Representative Dickey Lee Hullinghorst sponsored

  the bill amending the hospital lien statute to “require[] a hospital to


                                    12
  submit charges for hospital care and services to a patient’s payer of

  benefits, as defined in the bill, before a lien for hospital care is

  created.” S.B. 15-265, 70th Gen. Assemb., 1st Reg. Sess., Bill

  Summary (Colo. 2015) (as introduced in Senate),

  https://perma.cc/XYM5-UPTS. The statute’s nine categories of

  “payers of benefits,” listed in footnote 2 above, remained the same

  from the bill’s introduction to its final version.

¶ 21   However, as relevant here, the introduced version varied from

  the final version as follows:

          • In the introduced version, subsection (1) mandated that

             “[b]efore a lien is created, [a hospital shall submit

             charges] to all payers of benefits available to the injured

             person.” Id. § 1 (emphasis added). The subsection did

             not specify which payers of benefits were to be billed,

             liken the requirement to “the same manner as used by

             the hospital” for billing patients who are not wrongfully

             injured, or include the language “to the extent permitted

             by state and federal law.”

          • The language in subsection (2) of the final bill, permitting

             a lien if the injured person lacks insurance, did not

                                      13
             appear in the introduced version. See S.B. 15-265, 70th

             Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as enrolled,

             May 14, 2015), https://perma.cc/J2SJ-7GLM.

¶ 22   While the introduced version required pre-lien billing of “all

  payers of benefits,” that language was later amended, in the April

  21, 2015, version of the bill, to include the principal words at issue

  in this case, which specify that hospitals should submit charges to

  “the property and casualty insurer and the primary medical payer

  of benefits available to and identified by or on behalf of the injured

  person, to the extent permitted by state and federal law.” S.B.

  15-265, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015) (as

  engrossed), https://perma.cc/K2QJ-K49Y. We perceive this change

  to be a practical revision to allow for a lien before numerous

  insurers had been billed in sequence, and years had passed.

¶ 23   Senator Cadman introduced the April 21 version of the bill to

  the full Senate chamber, stating that (1) liens against an injured

  person were “egregious”; (2) they were a “second injury” to someone

  injured by the wrongful actions of another party; (3) “liens are a

  hammer”; and (4) “shouldn’t the lien be the last resort?” He then

  asked for an “aye” vote. 2d Reading on S.B. 15-265 before the S.,


                                    14
  70th Gen. Assemb., 1st Reg. Sess., https://perma.cc/YT4X-JKCD.

  The bill passed in the Senate.

¶ 24   In the House, subsection (1) was further amended in the May

  1, 2015, version to include “in the same manner as used by the

  hospital for patients who are not injured as the result of the

  negligence or wrongful acts of another person,” S.B. 15-265, 70th

  Gen. Assemb., 1st Reg. Sess. § 1 (Colo. 2015) (as revised),

  https://perma.cc/AM6W-SEF8.

¶ 25   The bill progressed through many iterations before its final

  form; yet, the General Assembly did not add language referring

  specifically to Medicare in any version of the bill. The legislature

  could have clearly distinguished its treatment of private and

  government payers, as some states have done, but it did not. 7

  Thus, we perceive no indication that the General Assembly intended




  7 Alabama and Utah are two such states. See Ala. Code
  § 35-11-371(b)(2) (2019) (providing that hospitals may have a lien
  on injured persons “covered by a governmental payor including
  Medicare or Medicaid” before billing the payer); Utah Code Ann.
  § 38-7-1(3)(a) (West 2019) (providing that “a hospital may not assert
  a lien . . . if the services provided by the hospital are covered by . . .
  private health insurance”).

                                      15
  to exclude Medicare beneficiaries from the lien protections offered

  by the amended statute.8

¶ 26   Rather, we perceive the legislative intent to be clear. The

  General Assembly enacted the 2015 amendments to protect insured

  accident victims, including Medicare recipients, from hospital liens.

¶ 27   We therefore conclude that under these facts, Medicare is a

  “primary medical payer of benefits” under the statute. The

  legislative history reveals that our construction is aligned with the

  legislature’s objective and favors the public interest. See

  § 2-4-201(1)(e); Terry, 791 P.2d at 376. Accordingly, Medicare must

  be billed before a lien is filed, unless such billing is not permitted by

  federal law. We conclude, in Part V below, that such billing is

  permitted.

               C. General Consequences of Our Construction




  8 We may have reached a different conclusion for injured persons
  with Medicaid as their only health insurance. There was
  substantial discussion of Medicaid in the legislative history, and the
  amended statute specifically refers to the “Colorado Medical
  Assistance Act” (Medicaid) twice. See § 38-27-101(6), (9)(f).
  However, because it is undisputed that Garcia’s primary health
  insurance is Medicare, we need not address that question.

                                     16
¶ 28   We observe that the original intent of the hospital lien statute,

  to protect hospitals’ interest in payment for medical services to

  injured persons who may not be able to pay their medical debts, is

  not defeated by our construction. See Wainscott, ¶ 29. The covered

  hospital costs of Medicare beneficiaries will be paid, by a liability

  insurer or by Medicare, if the hospital bills the liability insurer and

  Medicare.

¶ 29   We recognize that, in cases of wrongful injury, Medicare

  requires hospitals to follow certain billing procedures that may

  affect the timing and amount of payments received. Specifically, a

  hospital may not bill Medicare until 120 days after it files a claim

  with a liability insurer or files a hospital lien, if it can reasonably

  expect payment from a liability insurer during that interval. If a

  hospital cannot reasonably expect payment during the 120 days, it

  can bill Medicare earlier. And certainly, the amount of payments to

  hospitals may be affected by our construction. But the General

  Assembly’s intent in the amended statute is to protect wrongfully

  injured insured people from the further injury of hospital liens —

  not to maintain the maximum possible payments for hospitals. See




                                      17
  id. at ¶ 21 (“[I]t is the existence of the lien itself that prejudices [the

  plaintiffs].”).

¶ 30    The purpose of the hospital lien statute has always been to

  preserve “reasonable and necessary” payments to hospitals.

  However, the goal of Centura’s billing and lien practices is to

  achieve maximum payments — these practices are what the

  General Assembly sought to curb in enacting the 2015 version of

  the statute.

¶ 31    Under the Medicare rules, and our construction of the

  Colorado hospital lien statute, when a wrongfully injured Medicare

  beneficiary receives medical treatment at a hospital, the hospital

  must first bill the tortfeasor’s liability insurer. Then, if no payment

  has been made or can reasonably be expected to be made during

  the “promptly period,” (1) it may bill Medicare, at Medicare rates

  (giving up the right of action against a liability insurance settlement

  or judgment for Medicare-covered services to Medicare); and (2) if it

  has billed the property and casualty insurer identified by or on

  behalf of the injured person, it may file a lien for services not

  covered by Medicare. See U.S. Dep’t of Health & Human Servs.,

  Ctrs. For Medicare & Medicaid Servs., Medicare Secondary (MSP)


                                      18
  Manual, ch.2, § 40.2B, D, E (2016) (MSP Manual). In any scenario,

  the hospital will be paid through liability insurance or by Medicare.

       V. Medicare Billing Before/Without a Lien Not Precluded by Law

¶ 32      The district court concluded that requiring Centura to bill

  Medicare before creating a lien caused a “potential” conflict with

  federal law, and Centura contends that requiring it to first bill

  Medicare creates an actual conflict.

¶ 33      The district court found a potential conflict, in part, because

  the Medicare statute and regulations effectively preclude a hospital

  from filing a lien against a Medicare beneficiary after the hospital

  has billed Medicare for its services. The court found that the

  General Assembly could not have intended for hospitals to forgo a

  lien.

¶ 34      Presuming that it has a right to a hospital lien against

  Medicare beneficiaries, and equating “billing” with “creating a lien,”

  Centura argues that because Medicare requires a tortfeasor’s

  insurance to be billed during the “promptly period,” before billing

  Medicare, the hospital lien statute actually conflicts with federal

  law. Centura is wrong.




                                      19
¶ 35   We acknowledge that the effect of requiring Centura to bill

  Medicare before filing a lien against the patient (for Medicare-

  covered services) is that Centura may not subsequently file a lien

  against Medicare patients (for those same services). But that result

  is “permitted by state and federal law,” and certainly is not

  prohibited by federal law. § 38-27-101(1). It is simply an outcome

  dictated by the Medicare payment provisions. Unless the hospital

  chooses to risk not billing Medicare, the result is that the hospital is

  certain to be paid, at least at Medicare rates. This result does not

  conflict with the purpose of the hospital lien statute as set forth in

  Wainscott.

¶ 36   Centura also argues that our interpretation stands as an

  obstacle to the federal purpose of making Medicare a secondary

  payer under these circumstances. Centura postulates that a

  tortfeasor’s liability insurer might escape liability, and leave

  Medicare unreimbursed, because the insurer will not pay a

  hospital’s bill absent a lien. We think this concern is unfounded. A

  lien is not necessary to a finding of liability. And when a third party

  is liable for a Medicare beneficiary’s injuries, Medicare will, by its

  own policies, be reimbursed for its payments.


                                     20
¶ 37   When a hospital bills a tortfeasor’s liability insurer without

  filing a lien (as it must under Medicare regulations and our

  interpretation of state law), either the insurer will pay it, in which

  case Medicare is not on the hook; or it will reject the bill because its

  insured is not liable, in which case Medicare will have to pay, but

  not because the hospital did not have a lien. Or, the liability

  insurer will settle with the injured party, who will be obligated to

  reimburse Medicare.

¶ 38   Nothing in our interpretation obstructs the federal purpose or

  elevates Medicare to a primary payer under those circumstances.

  Our interpretation affects only the hospitals’ right to a lien.

         A. Colorado May Limit Hospital Liens Against Medicare
                            Beneficiaries

¶ 39   Hospital liens are creatures of state law, and each state may

  establish the boundaries for hospitals’ rights (if any) to a lien.

  Colorado has always limited hospitals’ rights to a lien. Before it was

  amended, the hospital lien statute provided hospitals a right to a

  lien for only reasonable and necessary charges, excluding workers’

  compensation cases and charges arising after a judgment or

  settlement. The statutory amendments further limited the right to



                                     21
  a hospital lien by requiring, as relevant here, prior billing of both

  liability insurance and the injured person’s primary health

  insurance.

¶ 40   No federal law prevents Colorado from limiting the rights of

  hospitals to file a lien against Medicare beneficiaries. In fact, states

  may expressly exclude persons covered by Medicare from a hospital

  lien statute. See, e.g., Ind. Code § 32-33-4-3(b)(3)(E) (2019) (stating

  that the hospital lien statute is not applicable to persons covered by

  Medicare). Federal law is clear that “[t]he [Medicare as a secondary

  payer] provisions do not create lien rights when those rights do not

  exist under State law.” MSP Manual, ch. 2, § 40.2F.

                  B. Liens Are Not Required for “Billing”

¶ 41   The MSP Manual provides, in a section entitled “Billing Options

  and Requirements – Alternative Billing,” that “[g]enerally, providers,

  physicians, and other suppliers must bill liability insurance prior to

  the expiration of the promptly period rather than bill Medicare.

  (The filing of an acceptable lien against a beneficiary’s liability

  insurance settlement is considered billing the liability insurance.)”

  Id. § 40.2B. Centura argues that this section indicates that

  Medicare requires hospitals to file a lien. We disagree.


                                     22
¶ 42   By its plain language, this section requires that hospitals “bill”

  liability insurance, and provides that one way the billing

  requirement may be satisfied is by filing an “acceptable” lien. As

  discussed in Part V.A, liens are creatures of state law and states

  define what liens are “acceptable”; we reject the proposition that

  Medicare requires states to permit liens against its beneficiaries.

¶ 43   When asked at oral argument whether it could comply with

  Medicare regulations by billing the liability insurer, without filing a

  lien, Centura merely argued that such billing would be “futile” for

  its collections. Even assuming such futility, we perceive no conflict

  between our interpretation of the statute and federal law. 9


  9In fact, the following example from the Centers for Medicare &
  Medicaid Services’ website supports this result:

             Joan is driving her car when someone in
             another car hits her. Joan has to go to the
             hospital. The hospital tries to bill the other
             driver’s insurance company. The insurance
             company disputes who was at fault and won’t
             pay the claim right away. The hospital bills
             Medicare, and Medicare makes a conditional
             payment to the hospital for health care
             services Joan got. When a settlement is
             reached with the other driver’s insurance
             company, Joan must make sure Medicare gets
             repaid for the conditional payment.


                                     23
  Accordingly, we reject Centura’s and the district court’s contrary

  interpretation.

¶ 44   We recognize, as a practical matter, that hospitals without a

  lien are guaranteed to collect medical payments at only Medicare

  rates. At the same time, Medicare-insured victims of negligent or

  wrongful injury will not suffer the additional injury of a lien, and

  they are likely to recover a greater percentage of the liability

  coverage available. The latter interests are the ones the General

  Assembly sought to protect in amending the hospital lien statute,

  while maintaining the original purpose of the hospital lien statute

  by permitting immediate liens for uninsured patients. See

  § 38-27-101(2).

                          VI. Out-of-State Cases

¶ 45   We are not persuaded by the out-of-state cases relied on by

  the district court, and by Centura on appeal, that our conclusion

  should be different. These cases interpret statutes with different

  effects than the Colorado hospital lien statute and in any event are




  U.S. Dep’t of Health & Human Servs., Ctrs. For Medicare &
  Medicaid Servs., Medicare & Other Health Benefits: Your Guide to
  Who Pays First 19 (rev. Dec. 2018), https://perma.cc/KDB3-H73W.

                                     24
  not binding precedent on this court. Most importantly, however,

  these cases do not conflict with our opinion.

¶ 46   In Joiner v. Medical Center East, Inc., 709 So. 2d 1209, 1209-

  10, 1221 (Ala. 1998), the Alabama Supreme Court concluded that

  under applicable Medicare law, the hospital had a right “to obtain

  full payment of its charges” from the settlement to an injured

  Medicare beneficiary, where the hospital did not bill Medicare. That

  right is not compromised by this opinion. Only the right to a lien is

  affected. Joiner did not involve interpretation of a state law on

  hospital liens.

¶ 47   In Parkview Hospital, Inc. v. Roese, 750 N.E.2d 384, 391 (Ind.

  Ct. App. 2001), the Indiana Court of Appeals concluded that under

  federal law and the state hospital lien statute, after the “promptly

  period,” the hospital may choose to (1) submit charges to Medicare

  and waive its lien or (2) pursue its claim against a settlement and

  waive Medicare reimbursement. That choice remains intact under

  our construction of the Colorado version of the statute, but rather

  than waiving a lien if it chooses to bill Medicare, the hospital must

  withdraw any bill or claim submitted to a liability insurer.




                                    25
¶ 48   In Speegle v. Harris Methodist Health System, 303 S.W.3d 32,

  37-40 (Tex. App. 2009), the Court of Appeals of Texas invalidated a

  portion of the Texas timely billing hospital statute (not the hospital

  lien statute) to the extent it required a hospital to bill Medicare

  when settlement funds were available. Again, nothing in our

  opinion requires a hospital to bill Medicare. Billing Medicare is a

  prerequisite only to filing a lien.

                                  VII. Relief

¶ 49   Garcia asks that we reverse the district court’s denial of her

  cross-motion for summary judgment and order that the motion be

  granted. Usually, the denial of a motion for summary judgment is

  not an appealable ruling. See Dep’t of Nat. Res. v. 5 Star Feedlot

  Inc., 2019 COA 162M, ¶ 36. However, “when a district court rules

  on cross-motions for summary judgment — denying summary

  judgment for one party and granting summary judgment for the

  other — the judgment is final and we may review the denial.” Id.

¶ 50   Here, although Centura couched its motion as a motion to

  dismiss under C.R.C.P. 12(b)(5), the motion was properly treated as

  a motion for summary judgment because Centura attached

  affidavits and exhibits to its motion, see Churchey v. Adolph Coors


                                        26
  Co., 759 P.2d 1336, 1339 (Colo. 1988), and the district court

  considered these attachments in its order. See Bristol Bay Prods.,

  LLC v. Lampack, 2013 CO 60, ¶ 46 (holding that this is “beyond

  what is permissible absent conversion to a summary judgment

  motion”). Because the district court considered matters outside the

  pleadings, it was required to convert the motion to dismiss to a

  motion for summary judgment. Id.; see C.R.C.P. 12(b)(5).

¶ 51   Consequently, and because Centura did not come forward

  with evidence demonstrating a genuine issue of material fact, we

  may direct the entry of judgment against it and in favor of Garcia.

  See 5 Star, ¶¶ 36-37.

                             VIII. Conclusion

¶ 52   We reverse the district court judgment granting Centura’s

  motion to dismiss (properly considered a motion for summary

  judgment) and denying Garcia’s motion for summary judgment. We

  conclude that Garcia was “subject to a lien in violation of [section

  38-27-101],” § 38-27-101(7), and we order that summary judgment

  be granted as to her individually. We express no opinion as to

  “others similarly situated.” The case is remanded for the district




                                    27
court to enter judgment in favor of Garcia and award her recovery

in accordance with section 38-27-101(7).

     JUDGE FREYRE and JUDGE GROVE concur.




                                28
