WEST virginia legislature

2018 regular session

ENROLLED

 Committee Substitute

for

House Bill 4392

By Delegates Ellington, Hanshaw, Householder, Shott and Summers

[Passed March 10, 2018; in effect ninety days from passage.]

 AN ACT to amend and reenact §9-5-11 of the Code of West Virginia, 1931, as amended, relating to Medicaid subrogation liens of the Department of Health and Human Resources; extending the definition of a liable “third-party” to include certain insurers; establishing notice requirements for claims and civil actions; providing authority for the secretary to negotiate and incentivize Medicaid members to prosecute lawsuits against liable third parties;   providing  a priority right to the department for subrogation payments; requiring department authorization before finalizing settlement in certain circumstances;   establishing the notice, procedure and consent requirements for settlement allocation; establishing procedure in the event the department rejects the proposed allocation; establishing the burden of proof regarding allocation dispute proceedings in court;  requiring the trial court to consider the department’s interests in maximizing recovery for purposes of the operation of the Medicaid program in an allocation dispute; requiring the trial court decision to reflect findings of fact and conclusions of law; where a final subrogation lien is less than $1,500 those matters are exempt from the provisions of this section; modifying the penalty for failure of recipient’s legal representative to notify the department to include interest, and setting effective date.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5. MISCELLANEOUS PROVISIONS.

§9-5-11. Definitions; assignment of rights; right of subrogation by the department for third-party liability; notice requirement for claims and civil actions; notice requirement for settlement of third-party claim; penalty for failure to notify the department; provisions related to trial; attorneys fees; class actions and multiple plaintiff actions not authorized; and Secretary's authority to settle.

(a) Definitions. As used in this section, unless the context otherwise requires:

(1) “Bureau” means the Bureau for Medical Services.

(2) “Department” means the West Virginia Department of Health and Human Resources, or its contracted designee.

(3) “Recipient” means a person who applies for and receives assistance under the Medicaid Program.

(4) “Secretary” means the Secretary of the Department of Health and Human Resources.

(5) “Third-party” means

(A) an individual or entity that is alleged to be liable to pay all or part of the costs of a recipient's medical treatment and medical-related services for personal injury, disease, illness or disability, as well as any entity including, but not limited to, a business organization, health service organization, insurer, or public or private agency acting by or on behalf of the allegedly liable third-party; and,  

Any insurer that may be liable under an uninsured or underinsured motorist policy covering the injuries to the recipient.

(b) Assignment of rights.

 (1) Submission of an application to the department for medical assistance is, as a matter of law, an assignment of the right of the applicant or his or her legal representative to recover from third parties past medical expenses paid for by the Medicaid program.

(2) At the time an application for medical assistance is made, the department shall include a statement along with the application that explains that the applicant has assigned all of his or her rights as provided in this section and the legal implications of making this assignment.

(3) This assignment of rights does not extend to Medicare benefits.

(4) This section does not prevent the recipient or his or her legal representative from maintaining an action for injuries or damages sustained by the recipient against any third-party and from including, as part of the compensatory damages sought to be recovered, the amounts of his or her past medical expenses.

(5) The department shall be legally subrogated to the rights of the recipient against the third party.

(6) The department shall have a priority right to be paid first out of any payments made to the recipient for past medical expenses before the recipient can recover any of his or her own costs for medical care.

(7) A recipient is considered to have authorized all third-parties to release to the department information needed by the department to secure or enforce its rights as assignee under this chapter.

(c) Notice requirement for claims and civil actions, Secretary’s authority to intervene and to settle.

(1) A recipient's legal representative shall provide notice to the department within 60 days of asserting a claim against a third party.

(2) If the recipient has no legal representative and the third party knows or reasonably should know that a recipient has no representation then the third party shall provide notice to the department within 60 days of receipt of a claim or within 30 days of receipt of information or documentation reflecting the recipient is receiving Medicaid benefits, whichever is later in time.

(3) In any civil action implicated by this section, the department may file a notice of appearance and shall thereafter have the right to file and receive pleadings, intervene and take other action permitted by law.

(4) The department shall provide the recipient and the third party, if the recipient is without legal representation, notice of the amount of the purported subrogation lien within 30 days of receipt of notice of the claim. The department shall provide related supplements in a timely manner, but no later than 15 days after receipt of a request for same.

(5) When determined by the department to be cost effective, the secretary or his or her designee may, in his or her sole discretion, negotiate for a reduction in the lien in an amount sufficient to incentivize Medicaid members to settle claims against liable third parties.

(d) Notice of settlement requirement.

(1) A recipient or his or her representative shall notify the department of a settlement with a third-party and retain in escrow an amount equal to the amount of the subrogation lien asserted by the department. The notification shall include the amount of the settlement being allocated for past medical expenses paid for by the Medicaid program. The settling parties shall obtain the department’s consent before finalizing a settlement, unless, the amount of the settlement is sufficient to fully reimburse the amount of the Department’s subrogation lien.

(2) Within 30 days of the receipt of any such notice of a proposed settlement, the department shall notify the recipient of its consent or rejection of the proposed allocation. If the department consents, the recipient or his or her legal representation shall issue payment out of the settlement proceeds in a manner directed by the secretary or his or her designee within 30 days of consent to the proposed allocation.

(3) If the total amount of the settlement is less than the department's subrogation lien, then the settling parties shall obtain the department's consent to the settlement before finalizing the settlement. The department shall advise the parties within 60 days and provide a detailed itemization of all past medical expenses paid by the department on behalf of the recipient for which the department seeks reimbursement out of the settlement proceeds (4) If the department rejects the proposed allocation, the recipient or his or her legal representative shall seek a judicial determination within 30 days regarding the appropriateness of the proposed settlement in the court in which the action is then pending or, in the event no such action is pending, in any court in which the recipient could have filed such action for damages.

(A) If judicial determination becomes necessary, the trial court is required to hold an evidentiary hearing. The recipient and the department shall be provided ample notice of the same and be given just opportunity to present the necessary evidence, including fact witness and expert witness testimony, to establish the amount to which the department is entitled to be reimbursed pursuant to this section

(B) The department shall have the burden of proving by a preponderance of the evidence that the allocation agreed to by the parties is proper. The trial court shall give due consideration to the department’s interest in being fairly reimbursed for purposes of the operation of the Medicaid program. The trial court’s decision should be set forth in a detailed order containing the requisite findings of fact and conclusions of law to support its rulings.

(5) If the amount of the Department’s final subrogation lien does not exceed $1,500 the settlement shall be exempt from the provisions of this section.

(6) Nothing herein prevents a recipient from seeking judicial intervention to resolve any dispute as to allocation prior to effectuating a settlement with a third party.

(e) Department failure to respond to notice of settlement.  If the department fails to appropriately respond to a notification of settlement, the amount to which the department is entitled to be paid from the settlement shall be limited to the amount of the settlement the recipient has allocated toward past medical expenses.

(f) Penalty for failure to notify the department. A legal representative acting on behalf of a recipient or third party that fails to comply with the provisions of this section is liable to the department for all reimbursement amounts the department would otherwise have been entitled to collect pursuant to this section but for the failure to comply, plus interest at the legal rate from the date of the settlement.  Under no circumstances may a pro se recipient be penalized for failing to comply with the provisions of this section.

(g) Miscellaneous provisions relating to trial.

(1) Where an action implicated by this section is tried by a jury, the jury may not be informed at any time as to the subrogation lien of the department.

(2) Where an action implicated by this section is tried by judge or jury, the trial judge shall, or in the instance of a jury trial, require that the jury, identify precisely the amount of the verdict awarded that represents past medical expenses.

(3) Upon the entry of judgment on the verdict, the court shall direct that upon satisfaction of the judgment any damages awarded for past medical expenses be withheld and paid directly to the department, not to exceed the amount of past medical expenses paid by the department on behalf of the recipient.

(h) Attorneys' fees. Irrespective of whether an action or claim is terminated by judgment or settlement without trial, from the amount required to be paid to the department there shall be deducted the reasonable costs and attorneys' fees attributable to the amount in accordance with and in proportion to the fee arrangement made between the recipient and his or her attorney of record so that the department shall bear the pro-rata share of the reasonable costs and attorneys' fees: Provided, That if there is no recovery, the department shall under no circumstances be liable for any costs or attorneys' fees expended in the matter.

(i)  Class actions and multiple plaintiff actions not authorized. Nothing in this article shall authorize the department to institute a class action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover medical care expenditures paid for by the Medicaid program.

(j) Secretary's authority.  The secretary or his or her designee may, in his or her sole discretion, compromise, settle and execute a release of any claim relating to the department's right of subrogation, in whole or in part.

(k)    Effective Date. -- The amendments to this section enacted during the 2018 regular session of the West Virginia Legislature shall be effective with respect to claims against third parties arising on or after July 1, 2018.