PIL/Estate Recovery Outline

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1 PIL/Estate Recovery Outline 1. Third-party personal injury liens a. Arkansas Dept. of Health and Human Services v. Ahlborn (2006) 126 S.Ct. 1752, 547 U.S. 268, 164 L.Ed.2d 459. i. General description 1. Court held that Medicaid law did not authorize ADHS to assert a lien on the settlement in excess of the stipulated to medical expenses. Additionally, when it is established that a settlement represents a particular percentage of the total value of the case, the State's Medicaid agency may recover only that percentage of the total amount it has paid. The Arkansas statute was unenforceable to the extent that it allowed ADHS to recover more than the medical expenses. ii. Cases since a. Tristani v. Richman, 2009 WL (M.D.Pa. March 25, 2009) i. Pennsylvania federal district court held that the anti-lien and anti-recovery provisions (42 U.S.C. section 1396k(b)) of federal law bar any recovery of injury settlements directly from personal injury victims by Medicaid departments. ii. They stated while Ahlborn said that the state may not recover non-medical expenses, the state is free to intervene in the cases or directly represent its own interest. b. Lugo ex rel. Lugo v. Beth Israel Med. Ctr., 13 Misc. 3d 681, 819 N.Y.S.2d 892 (Sup. Ct. 2006) i. "Ahlborn must be read to limit the DSS recoupment to the amount of the settlement proceeds allocated to past medical expenses." Lugo, at 686. b. Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391, 185 L. Ed. 2d 471 (2013) i. General Description 1. North Carolina statute entitled the state to one-third of a settlement or judgment that was attributable to medical expenses. The Supreme Court found that the statute was preempted by federal anti-lien provisions. a. An irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act s clear mandate that a state may not demand any portion of a beneficiary s tort recovery except the share that is a attributable to medical expenses. Wos, at ii. Approaches 1. Pre-Wos/Current State strategy

2 a. Rebuttable Presumption i. Hawaii -- Haw. Rev. Stat (h) 1. Rebuttable presumption of one-third allocation 2. State has to give consent to whatever the settlement is, ensuring fair settlement while also paying attention to the state s interests. ii. Idaho - Idaho Code Ann., b 1. Rebuttable presumption of 100% of full reimbursement iii. Massachusetts - Mass. Gen. Laws, ch. 118E, 22(c) 1. Rebuttable presumption of 100% of the full reimbursement. 2. State has to give consent to whatever the settlement is, ensuring fair settlement while also paying attention to the state s interests. iv. Oklahoma Okla. Stat. Tit. 63, (D)(1)(d) 1. Rebuttable presumption of full reimbursement unless medical expenses is already clearly delineated from others. v. Pennsylvania 62 P.S Rebuttable presumption of one-half the settlement after fees deducted. vi. Connecticut - Conn. Gen. Stat. 17b-94; 17b Against the proceeds therefrom in the amount of the assistance paid or fifty percent of the proceeds received by such beneficiary or such parent after payment of all expenses connected with the cause of action, whichever is less. vii. Iowa Iowa Code 249A.6(1) 1. One-third of the remaining balance [after fees and costs are assessed] shall then be deducted and paid to the recipient. From the remaining balance, the lien of the department shall be paid. Any amount remaining shall be paid to the recipient. viii. New Hampshire - N.H. Rev. Stat. Ann. 167:44(IV) 1. Order of apportionment can be sought by either party to determine whether or not the settlement is appropriate.

3 b. Hearings/Negotiations/Other i. Maine - Me. Rev. Stat. Ann. Tit. 22 section System in place for the commissioner to determine whether or not collecting on the lien in the full amount is equitable, Commissioner discretion to reduce or waive. ii. Maryland Md. Code Ann. Health-Gen (c)(3) 1. Will negotiate to reduce lien if it is greater than 50% of the total settlement or if it would cause substantial hardship to the individual. iii. Minnesota - Minn. Stat. Ann. 256B.042(5) 1. Priority is costs and fees, then the state recovery, but the individual must receive at least 1/3 of the net recovery. iv. Mississippi - Miss. Code Ann Requires parties to obtain advance consent from the state for allocation of funds, provide a hearing if there is no agreement. v. Ohio - O.R.C After attorney s fees and costs are deducted, entitled to 50% or the actual amount of medical bills paid, whichever is less. vi. South Carolina - S.C. Code Ann The department can intervene in court, settle and compromise, generally has discretion regarding the lien. vii. Tennessee - Tenn. Code. Ann Requires parties to obtain advance consent from the state for allocation of funds, provide a hearing if there is no agreement. 2. The gross amount of the subrogation interest shall be based upon the findings of the jury concerning medical expenses and evidence introduced after the trial about the total sum of moneys paid by the state. viii. Washington - Wash. Rev. Code 43.20B.050,060, 070, RCW 43.20B.060(4)

4 1. Casualty unit works closely with the party initiating the action and provides documentation concerning specific medical payments paid for by HCA for the client. 2. The Casualty unit will also determine the amount to be paid to satisfy the lien, as HCA is required to pay its proportionate share of attorney's fees and costs incurred in recovering a settlement or judgment. ix. West Virginia - W. Va. Code, Trial court conducts evidentiary hearing to determine settlement, specifically what will be allocated to Medicaid. 2. Post-Wos State Strategy a. Florida i. Fla. Stat Beneficiaries must file a petition for administrative hearing with the Division of Administrative Hearings in Tallahassee, Fla., and prove by clear and convincing evidence that a lesser portion of the total recovery should be allocated as reimbursement for medical expenses than the amount asserted by the agency. Fla.Stat (17)(a)(1). 2. The new statutory procedure is the [e]xclusive method for challenging the amount of third-party benefits payable to the agency, Fla.Stat (17)(a), and the beneficiary bears its own fees and costs for any such administrative proceeding. Fla.Stat (17)(a)(4). b. Wisconsin i. Ka Yang v. Portage Cnty., Wis., 12-CV-797-BBC, 2013 WL (W.D. Wis. July 19, 2013) 1. Declared Wisconsin statute preempted by federal law under Wos, sent the case back down for the parties to allocate medical expenses themselves without holding an actual trial. (Wisconsin has no administrative hearing process).

5 2. Under the circumstances of the case before us, absent any state-created mechanism for [allocating medical and nonmedical expenses], it will fall to the district court to conduct the appropriate proceedings. c. Oregon i. Current Policy ii. Future Options 1. Amend statute a. Something similar to Florida? 2. Administrative 2. Estate recovery a. Oregon - Generally i. OAR Broad definition of estate facilitates recovery of Medicaid assistance paid regardless of how it passes upon a recipient s death. Any property that the individual had an interest in before their death. 2. Assets both in and out of a probate. Can include: a. Life estate - ORS i. State ex rel. Dep't of Human Servs. v. Willingham, 206 Or. App. 156, 136 P.3d 66 (2006) 1. Amendment to statute governing recovery of medical assistance paid by State during lifetime of holder of life estate interest was intended to reach life estates created before the time of the amendment; the fact that statute and its legislative history made no distinction as to when the property interests were created was persuasive evidence that the legislature intended that statute, as amended, to apply to all life estates. b. Living trust c. Joint tenancy, tenancy in common ii. No lien mechanism, rather DHS makes claims against the estate itself. iii. Priority of creditors - ORS iv. Surviving spouse OAR If there is a surviving spouse, the Department has a claim against the estate of the surviving spouse for public assistance paid to the surviving spouse.

6 2. In addition, the Department has a claim against the estate of the surviving spouse for public assistance paid to the predeceased spouse, but only to the extent that the surviving spouse received property or other assets from the predeceased spouse through either probate, operation of law, and INTERSPOUSAL TRANSFER.

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