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50 State Primer on Medicaid Recovery Laws

50 State Primer on Medicaid Recovery Laws HINSHAW & CULBERTSON LLP ON THE LAW SERIES Volume 2 Second Edition July 2019 Hinshaw & Culbertson LLP is a based law firm with offices in 11 states and London. The firm s national reputation spans the insurance industry, the professional services sector including representation of law firms and lawyers and other highly regulated industries, such as banking and finance and the debt collection sector. Hinshaw also provides a series of closely coordinated litigation, business advisory and transactional services to clients of all sizes as well as governmental and public sector entities. Visit for more information and follow @Hinshaw on LinkedIn and Twitter. Hinshaw & Culbertson LLP 151 North Franklin Street, Suite 2500 Chicago, IL 60606 312-704-3000 This Primer is part of a series of guides prepared by Hinshaw & Culbertson LLP for legal and insurance professionals.

50 State Primer on Medicaid Recovery Laws 1 . 50 State Primer on Medicaid Recovery Laws This primer is intended to provide a brief introduction to Medicaid Recovery laws and act as a

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Transcription of 50 State Primer on Medicaid Recovery Laws

1 50 State Primer on Medicaid Recovery Laws HINSHAW & CULBERTSON LLP ON THE LAW SERIES Volume 2 Second Edition July 2019 Hinshaw & Culbertson LLP is a based law firm with offices in 11 states and London. The firm s national reputation spans the insurance industry, the professional services sector including representation of law firms and lawyers and other highly regulated industries, such as banking and finance and the debt collection sector. Hinshaw also provides a series of closely coordinated litigation, business advisory and transactional services to clients of all sizes as well as governmental and public sector entities. Visit for more information and follow @Hinshaw on LinkedIn and Twitter. Hinshaw & Culbertson LLP 151 North Franklin Street, Suite 2500 Chicago, IL 60606 312-704-3000 This Primer is part of a series of guides prepared by Hinshaw & Culbertson LLP for legal and insurance professionals.

2 This publication is provided for informational purposes only. It is not intended to constitute, and shall not be construed as, the rendering of legal, accounting, or business advice or opinion or professional services of any type. Nothing herein constitutes the views of the firm or its clients or the endorsement of any particular case, principle, or proposition. The contents of this publication should not be viewed as a substitute for the guidance, advice, or recommendations of a retained professional. 2019 Hinshaw & Culbertson LLP. All rights Reserved. No part of this publication may be reproduced in any form or by any means without express, written permission from Hinshaw & Culbertson LLP 50 State Primer on Medicaid Recovery Laws Table of Contents Page INTRODUCTION TO Medicaid AND State AGENCY Recovery RIGHTS.

3 1 ALABAMA .. 4 ALASKA .. 6 8 ARKANSAS .. 9 CALIFORNIA .. 11 COLORADO .. 13 CONNECTICUT .. 14 DELAWARE .. 15 FLORIDA .. 16 18 HAWAII .. 19 IDAHO .. 20 ILLINOIS .. 21 INDIANA .. 22 IOWA .. 24 25 26 LOUISIANA .. 28 MAINE .. 31 MARYLAND .. 34 36 MICHIGAN .. 38 MINNESOTA .. 42 MISSISSIPPI .. 43 50 State Primer on Medicaid Recovery Laws MISSOURI .. 45 MONTANA .. 47 NEBRASKA .. 50 NEVADA .. 52 NEW HAMPSHIRE .. 54 NEW JERSEY .. 56 NEW MEXICO .. 58 NEW YORK .. 60 NORTH CAROLINA .. 61 NORTH DAKOTA .. 64 66 OKLAHOMA .. 68 OREGON .. 71 PENNSYLVANIA .. 74 RHODE ISLAND .. 79 SOUTH 80 SOUTH DAKOTA .. 83 TENNESSEE .. 84 TEXAS .. 88 UTAH .. 89 VERMONT .. 96 VIRGINIA .. 99 WASHINGTON .. 101 WEST VIRGINIA .. 104 WISCONSIN .. 107 WYOMING .. 108 50 State Primer on Medicaid Recovery Laws 1 50 State Primer on Medicaid Recovery Laws This Primer is intended to provide a brief introduction to Medicaid Recovery laws and act as a practical reference guide for insurance, legal, or medical service providers on Medicaid reimbursement or subrogation claims, or Medicaid compliance issues.

4 In this highly regulated industry, it is essential to understand the individual State laws that affect reimbursement and subrogation claims. In March 2017, we brought you the 1st Edition of the 50 State Primer on Medicaid Recovery Laws. We are pleased to offer this 2nd Edition which includes updates to individual State laws, including Iowa, Kansas, Kentucky, Maine, Michigan, North Dakota, Tennessee, Texas, Utah, Virginia, and Washington. We have used bold underlined typeface to indicate changes to State laws since the 1st E dition. INTRODUCTION TO Medicaid AND State AGENCY Recovery RIGHTS Medicaid is the single largest health plan in the United States with enrollment of more than 72 million individuals. Medicaid is separate and distinct from Medicare, which is a federal health plan based on age and certain disabilities.

5 Medicaid is a joint federal and State program that funds medical care. Low income families, qualified pregnant women and children, and individuals receiving Supplemental Security Income (SSI) are examples of mandatory Medicaid eligible groups, whereas other groups are provided optional coverage at the State 's discretion such as individuals receiving home and community based services and children in foster care who are not otherwise eligible. States are not required to participate in Medicaid ; however, all States have opted to do so. The federal government covers a percentage of the medical costs that are paid by the States. In return, States must pay their portion of medical costs as well as follow the requirements the federal government has set in place for Medicaid .

6 State participation requirements include the following: setting requirements for eligibility determinations; collecting and maintaining information; and administering the program. If the State recovers from a liable third party, then the federal government does not have to reimburse the State . See FFP and Repayment of Federal Share, 42 (a)(2)(2005). To receive federal Medicaid funding, States must include a provision in their Medicaid plans for recouping funds spent on behalf of Medicaid recipients from liable third parties. 42 1396a(a)(25)(A). States must take all reasonable measures to find third parties that are liable for the coverage of a Medicaid recipient's medical costs. Id. States must include a provision that requires Medicaid participants to sign over their rights to seek and collect payment for medical care from a liable third party to the State .

7 42 1396a(a)(25)(H). Recipients of Medicaid have a duty to cooperate when the proceeding is initiated by the State . 42 Introduction to Medicaid and State Agency Recovery Rights 50 State Primer on Medicaid Recovery Laws 2 1396k(a)(1)(C). Recipients must help identify and provide information that will help the State to pursue third parties. Id. Also, States must pursue reimbursement from the third party if legal liability is found, unless the cost of pursuing the reimbursement outweighs the amount of reimbursement. 42 1396a(a)(25)(B); See also 42 1396p(a); Arkansas Department of Health & Human Services v. Ahlborn, 547 268 (2006). Under Ahlborn, the State can only recover its Medicaid expenses from the portion of the settlement or judgment that is designated as medical costs.

8 Arkansas Dept. of Health & Human Servs., 547 at 280. The State cannot recover from any other portion of the settlement or judgment which means where a beneficiary/Plaintiff and a third party has a settlement which stipulates that 15% of the total award is medical expenses, the State will only have the ability to recover from that 15%. See Id. The practical effect of Ahlborn leads to the possibility that a State is not fully reimbursed. See Id. at 281-82. Also, the allocation methodology discussed in Ahlborn could result in a liable third party and a beneficiary conspiring to reduce the total medical costs associated with the settlement. 288. Under these circumstances, the State can challenge the settlement amount in court. Further, in cases where parties or the court do not specify which portion of the settlement or judgment is allocated for medical costs, the State can negotiate with the beneficiary or ask a court to determine the appropriate amount.

9 Id. States cannot, however, establish a broad allocation provision that determines medical costs. Wos v. ex rel. Johnson, 133 1391, 1402 (2013). For example, a State cannot claim that one-third of every judgment or settlement is automatically attributed to medical costs. Id. This is not permitted because it would then allow a State to have access to funds that are not designated for medical costs. Id. In 2013, due in part to Ahlborn and Wos, as well as Medicaid eligibility expansion under The Affordable Care Act, the Social Security Act was amended for Recovery of Medicaid expenditures from beneficiary liability settlements (commonly known as Strengthening Medicaid Third Party Liability ) which resolved to explicitly permit State Medicaid agencies to recover funds expended on its beneficiary from the entire settlement amount by removing language limiting State Recovery to only "health care items or services.

10 " Strengthening Medicaid Third Party Liability Recovery may have applied to practically void Ahlborn and Wos. However, prior to the effective date, the amendment permitting State s to recover from the entire settlement amount, not just heath care items or services, was repealed as part of the Bipartisan Budget Act of 2018. Consequently, Ahlborn and Wos can be interpreted as the law of the land. Notwithstanding, each State has different provisions for Medicaid reimbursement and Recovery laws and procedures. Many States already have statutory provisions proscribing Recovery to the Introduction to Medicaid and State Agency Recovery Rights 50 State Primer on Medicaid Recovery Laws 3 portion of settlement allocated for medical expenses. However, other States have a general rule that allows States to recover their medical assistance costs, while some statutes do not go further by specifying that it must be from the portion deemed to be for medical expenses.


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