SUBROGATION IN TEXAS. What s fair about that? Maybe something finally!

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3 SUBROGATION IN TEXAS What s fair about that? Maybe something finally!

4 What is Subrogation?

5 So what is unfair about that? They get their money back, right? Your health insurance policy has a subrogation clause. You didn t negotiate for it and don t know what it says. It is not there for your benefit. You paid the premiums and they get first money. You are not being compensated for your losses. You are required to pay to collect their money.

6 Rules on Subrogation depends on the type of Insurance Medicare Tri-Care ERISA controlled insurance plans Workers Compensation, et seq Texas Labor Code Medicaid Federal Employee Health Benefits Act Private Insurance Plans State of Texas Employee plans School District/State Employees/County Employees, Local Gov t Code

7 When should defense lawyers worry? Medicare Medicaid Tri-Care/VA Hospital Liens Workers Compensation Claims where there is a potential for a super lien or direct action.

8 A When should Plaintiff Lawyers worry? L W A Y S

9 ERISA Plans and Equitable Principles In US Airways v. McCutchen, the US Supreme Court held that a self funded ERISA plan is exempt from any form of State regulation and as such their plans can demand first priority of settlement proceeds. The new Texas law does not apply to these plans.

10

11 Does the Ahlborn analysis apply to Medicare? Writ of Certiorari was denied in the case of Hadden v. United States. This does not bode well for this argument. content/uploads/2012/05/ hadden-v.-u.s.- Petition.pdf In Texas, in a death case, there is an argument that if you only file suit for Wrongful Death Damages, waiving any claim for Survivorship, you may be able to ignore

12 SMART ACT Set up a file with Medicare early and when 120 days passes you can go online and ask Medicare for a figure and within 2 or 3 days you will have a figure you can rely on. The Statute of Limitations for Medicare claims is set at 3 years, probably from date you advise Medicare of your claim. Defendants have a Safe Harbor provision that if they notify Medicare, they will not be liable for the mandatory penalty if Medicare doesn t get paid.

13 Workers Compensation Responsible Third Party Texas Labor Code (c) Morales v. Michelin North America, Inc., 351 S.W.3d 120, Tex.App.-San Antonio, August 03, 2011 Determination of Percentage of Responsibility: The Court held that because the Plaintiff had settled or non-suited all the Defendants before he obtained a determination of his employer s responsibility, the Court would not make an advisory opinion as to any reduction and Judgment would be rendered.

14 First Money to Carrier Regardless of whether the negligent party has sufficient insurance or assets to cover my losses, my health insurance carrier gets the first money back. I have paid premiums for my coverage but my health insurance carrier gets all of their money and my lost wages, loss of physical disability and pain and suffering are entirely uncompensated. They even get paid by other first party insurance that I bought and paid for to protect me!

15 In the event the negligent party does not have sufficient insurance or assets to compensate my losses so I can be made whole, then my health insurance carrier waits in line for its payment. That is NOT the law in Texas by caselaw and now by statute. Made Whole Doctrine

16 Common Fund Doctrine The Common Fund Doctrine merely states that if I have to pay attorney fees and expenses to recover money from a negligent person, then the money recovered is treated as part of a common fund and the health insurance carrier who gets their money back has to pay their proportionate part of the recovery costs. Texas now has a statutory Common Fund Doctrine in most cases.

17 FORTIS IS OVERRULED

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19 The Bill would change Subrogation Rights of Health Insurers in Personal Injury Cases

20 A Legislative compromise between the Fortis Benefits Case and the Made-Whole Doctrine: HB 1869 filed by Rep. Price would conditionally limit the subrogation rights of a health insurer in a recovery by an injured person against a third party tortfeasor.

21 An insurer who pays benefits may contract to recover first money reimbursement out of any recovery realized by a injured party from a party responsible for the injury. Critics of the Fortis decision say that it unjustly abrogated the long-standing common law made-whole doctrine, (the rule that an insurer is not entitled to subrogation of medical benefits unless the insured has been made whole ) while actually punishing injured parties in some instances Under current law

22 HB 1869 would not restore the made-whole doctrine It does provide a statutory formula for a balanced division of the monetary recovery between the injured party and his or her health insurer in those cases where there is not enough money to fully compensate the injured party.

23

24 HB 1869 Legislative Solution to Fortis: Sec is just definitions. Sec Sets out who the plan applies to. Basically everyone except self insured ERISA plans. Sec makes it clear that this law trumps other laws. Sec makes it clear that subrogation is appropriate in Texas law.

25 Allows subrogation whenever the injured person can seek a recovery for past medical expenses. Wrongful death beneficiaries and children typically cannot recover past medical bills, so their claims would not be subject to subrogation.

26 Sec

27 Section Because an injured person may have multiple subrogation interests in the same claim, (b) and (c) also require the subrogated interests to divide their percentage of the recovery among themselves rather than encroach on the share set aside for the injured policyholder. The next subsection confirms that this bill does not restore the made whole doctrine. This bill makes sure that neither the health insurer nor the injured person can get shut out of the settlement proceeds.

28 HB 1869 Legislative Solution to Fortis: Sec makes it clear that attorney fees are not allowed in these actions. Sec essentially follows the workers compensation act as it relates to the common fund doctrine. Sec controls when the plan can participate in uninsured motorist, Personal Injury Protection and other first party insurance. Sec a plan may, in its discretion agree to be more generous.

29 is repealed.

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31 Effective Date What s Your Message?

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