13 CSR 70-4.120 - Department is the Payer of Last Resort, Department's Claim for Recovery, Participant's Duty of Cooperation
PURPOSE: This amendment brings 13 CSR 70.120 into compliance with U.S. Supreme Court decision Gallardo v. Marstiller by removing language limiting recovery to funds dedicated to past medical expenses. The amendment also updates the definition of medical expenses.
(1) Definitions. The following definitions
shall apply for purposes of this regulation.
(A) "Assignment" is the legal transfer from a
participant to the division of the participant's right to recovery of medical
expenses from a liable third party.
(B) "Assist" shall include, but not be
limited to, providing full disclosure of all relevant information regarding a
claim against a liable third party or insurer to the division; fully completing
any and all forms requested by the division, provision of a Health Insurance
Portability and Accountability Act (HIPAA) release to the division when
requested; execution of any authorizations necessary to obtain release of any
information the division requires in pursuit of the recovery; filing claims
with potentially liable insurers when requested by the division; providing
documentation of any and all settlement agreements, awards, or judgments
related to claims against liable third parties; and timely responding to
requests for information from insurers after a claim has been
submitted.
(C) "Division" means the
MO HealthNet Division of the Department of Social Services.
(D) "Identify" shall mean providing complete
names, addresses, telephone numbers, and other relevant contact and location
information of all potentially liable third parties, their attorneys, agents,
and insurers.
(E) "Liable third
party" includes any person, corporation, or institution, any employer as
defined under Missouri's workers' compensation laws, and any public agency or
private agency, who is liable, either pursuant to contract or otherwise, to an
individual receiving public assistance on account of personal injury, disease,
or disability or benefits arising from a health insurance plan to which the
individual may be entitled.
(F)
"Medical expense" and "medical expenses" are the cost of items and services
provided under the Missouri State Medicaid Plan by the division on behalf of a
participant which are related to the participant's claim against a liable third
party, expressly excluding payments to vendors.
(G) "Medical treatment" means medical
treatment rendered to a participant related to the participant's claim against
a liable or potentially liable third party or insurer.
(H) "Notify" shall mean a written
communication to the division of all relevant facts and information known which
may be delivered to the division by United States Postal Service, facsimile
transmission, or email.
1. In any case where
written communication by a participant not represented by an attorney or other
legal representative is not possible or is not reasonable due to disability
requiring accommodation, the participant may substitute oral communication to
the division either in person or by telephonic communication. The division
shall provide the participant with written confirmation of the substitute oral
communication and detail its contents.
2. Communication to the division from a
licensed attorney or legal representative of a participant shall be in writing,
or if done orally be followed up by written confirmation of that communication
and its detailed contents.
(I) "Participant" is an individual who
applies for, is determined eligible for, and receives MO HealthNet benefits
provided under sections
208.151
to
208.158
or section
208.204,
RSMo.
(J) "Person" is any human
being or other entity legally recognized as a person under Missouri law,
including but not limited to, a corporation, cooperative, partnership, limited
liability company, sole proprietorship, mutual insurer, and governmental entity
or subdivision.
(K) "Timely" shall
mean within a reasonable time, however-
1. In
no case shall notification to the division occur later than ten (10) business
days from the date of discovery or knowledge of the act or information to be
disclosed by the participant to the division; and
2. In no case shall notification to the
division occur less than thirty (30) days prior to an anticipated or potential
settlement, compromise, judgment, award, or agreement regarding a participant's
claim against a liable third party or potentially liable
insurer.
(2)
Payer of last resort. The MO HealthNet Division is the payer of last resort of
medical assistance benefits to be paid on behalf of a participant, unless
otherwise specified by law.
(A) Liable third
parties shall meet their legal obligation to pay claims on behalf of a
participant before the division pays for a participant's medical assistance
benefits related to the participant's claim against the liable third
party.
(B) When the division pays
medical expenses on behalf of a participant, it shall pursue recovery of the
cost of those medical expenses from any liable third party or insurer to the
extent recovery is cost effective.
(3) Assignment right to recover medical
expenses. Each participant assigns to the division all rights to recovery of
medical expenses from liable third parties pursuant to section
208.215.4, RSMo, and by the
terms of the voluntary application for assistance submitted to the Family
Support Division.
(A) The assignment is
limited to recovery of medical expenses only.
(B) The assignment is a claim which
automatically attaches to any payments or benefits for medical treatment the
participant recovers or expects to recover from a liable third party or
insurer.
(C) No attempt to
compromise or release the assigned right to recovery of medical expenses shall
be effective, enforceable, or valid without the prior written agreement of the
division.
(4) MO
HealthNet Division has a claim against recovery for medical treatment.
(A) The division shall be entitled to any
payments or benefits recovered, or to be recovered, by or on behalf of a
participant from a liable third party or insurer to the extent the payment is
compensation for medical treatment.
(B) The division shall be entitled to the
medical treatment portion of any payments, settlements, awards, judgments, and
insurance contracts benefits owed to or paid to or on behalf of the participant
from any liable third party or insurer, including insurance contracts owned by
the participant, up to the amount of medical expenses paid on behalf of the
participant.
(C) No claim of the
division shall attach, or be deemed to attach, to any portion of a recovery
from a liable third party other than that portion which is compensation of
medical treatment.
(D) The
participant, the participant's attorney, the participant's appointed
representative, a liable third party, insurance carrier, or other interested
party may request in writing that the division provide notice of the amount of
the division's current claim.
(E) A
notice of claim to a liable third party shall set forth the current amount of
the claim. That claim amount shall be valid for thirty (30) days from the date
of the notice. The claim amount may increase or decrease over time depending
upon the submission and payment of provider claims and credits. It shall be the
responsibility of the participant, the participant's attorney, or the
participant's appointed representative to obtain a valid claim amount from the
division when the current claim amount is older than thirty (30) days when
seeking to recover medical expenses from a liable third party.
(F) A notice of claim sent to a liable third
party shall not include supporting documentation unless the liable third party
has provided the division previously with a valid HIPAA release from the
participant authorizing that disclosure. The division shall not be obligated to
provide supporting documentation in order to have a valid lien without a valid
authorization for release of that information from the participant, absent a
court order requiring such disclosure or protective order with conditions of
disclosure.
(G) Any potentially
liable third party who is aware, or reasonably should be aware, of the claim of
the department for recovery of medical expenses due to a participant shall keep
the department advised of its current contact information including, but not
limited to, mailing address and telephone number.
(5) MO HealthNet Division only has a claim
against recovery for medical treatment. Participants, their attorney(s),
agents, and other representatives, liable or potentially liable third parties,
and insurers shall allocate in settlement agreements that portion of the
settlement which is recovery for medical treatment.
(A) Payment to the division shall be deemed
as payment from that portion of the settlement which is recovery for medical
treatment.
(B) The division shall
not be bound by, and may object to, any settlement or allocation for medical
treatment that does not include the full amount of medical expenses paid by the
division.
(C) Where a settlement or
judgment does not allocate an amount that is recovery for medical treatment,
the division shall allocate as recovery for medical treatment the lesser of the
amount of medical expenses paid by the division or one-half (1/2) of the gross
recovery from any and all liable third parties and insurers unless an
individualized allocation can be demonstrated.
(D) Participants, their attorney(s), agents,
and other representatives may demonstrate an individualized allocation of
recovery for medical treatment where the division has objected to a proposed
allocation or a settlement or judgment is unallocated by presenting
documentation on behalf of the participant to support an individualized
allocation. The division may consider documentation of any combination of the
following factors as they relate to the incident when determining an
individualized allocation:
1. The amount of
medical expenses and medical treatment paid by and on behalf of the
participant;
2. The amount of
future medical treatment expected to be accrued by the participant;
3. The amount of lost wages claimed by the
participant;
4. Evidence of
paralysis, permanent injury, and/or scarring or disfigurement; and
5. Other factors as they relate to the
specific circumstances of the participant's claim.
(E) The burden of proof shall be on the
participant to demonstrate that the division is entitled to recover less than
an amount established above.
(F)
Parties dissatisfied with the amount allocated as recovery for medical
treatment may seek judicial determination of the amount owed to the division
under section 208.215.9,
RSMo.
(6) The computerized
records of the MO HealthNet Division are prima facie evidence of medical
expenses paid on behalf of the participant. The computerized records of MO
HealthNet Division which are certified by a custodian of those records are
prima facie evidence of the money expended on behalf of a participant in any
court or administrative proceeding.
(7) Duty of participant, agents, and third
parties to cooperate with the division. Participants, their attorney(s),
agents, and other representatives, and liable or potentially liable third
parties shall fully cooperate with and assist the division, as required by
section 208.215.4, RSMo, by providing
information identifying liable third parties, providing information to assist
the division in pursuit of any resources available from liable third parties
and insurers, and in obtaining any resources to which the participant has a
claim so the division can recover reimbursement for medical expenses. The duty
continues and includes the duty to timely supplement as new information is
discovered or known by the participant and the participant's attorneys, agents,
and other representatives.
(A) No
participants, attorneys, agents, or other legal representatives shall have the
authority to bind the division to any settlement or compromise of any claim of
the division without prior written authorization from the division.
(B) Participants, their attorneys, agents,
and legal representatives, and liable or potentially liable third parties shall
clearly disclose in any settlement or compromise of claims against liable third
parties the portion of the recovery which is compensation for medical expenses
the division has paid on behalf of the participant.
(C) Cooperation shall include, but not be
limited to, the following:
1. Timely
notifying the division of any accident, incident, act, or occurrence which may
give rise to a claim against a liable third party for medical
expenses;
2. Timely identifying to
the division all potentially liable third parties, liable third parties' legal
representatives, and potentially liable insurers;
3. Timely assisting the division in
recovering its claim for medical expenses from liable third parties;
4. Timely identifying to the division all
legal representatives of the participant with authority to act or inquire on
the participant's behalf, including but not limited to, attorneys, personal
representatives, holders of power of attorney, guardians, custodians, and
trustees;
5. Timely notifying the
division any time the participant files a lawsuit or makes a demand against any
liable party, potentially liable insurer, or other entity which may be an
available resource for payment of medical expenses; and
6. Timely notifying the division in writing
of the dollar amount of any settlement, award, or judgment which is
compensation for medical treatment related to the third party's liability with
accompanying explanation for how that amount was determined and documentation
of any settlement agreements.
(D) Notification to the division. All
notifications to the division under this section shall be delivered as follows:
1. By mail through the United States Postal
Service or other postal or package service, to MO HealthNet Division, Third
Party Liability Unit, PO Box 6500, 615 Howerton Court, Jefferson City, MO
65102; or
2. By facsimile
transmission (573-526-1162) to MO HealthNet Division, Third Party Liability
Unit; or
3. By email to MO
HealthNet Division, Third Party Liability Unit sent to the email address
MHD.costre-covery@dss.mo.gov; or
4.
By telephonic communication (573-751-2005) to MO HealthNet Division, Third
Party Liability Unit.
(8) Release of right to recover medical
expenses. No release, satisfaction, or other form of compromise of the right to
recovery of medical expenses from a liable third party shall be valid,
effective, or enforceable without the prior express written agreement and
acceptance by the division.
(A) Any attempt
by any person or entity to cause that right to recovery of medical expenses to
be released, satisfied, or otherwise compromised shall be void ab initio and no
defense of any claim against any person by the division absent the division's
prior express written agreement and acceptance of that release, satisfaction,
or other compromise.
(B) Any
release, satisfaction, or other compromise executed or agreed to by the
participant without the prior express written agreement of the division shall
be prima facie evidence of the participant's failure to cooperate and intent to
defraud the division of its right to recovery of medical
expenses.
(9) Form of
notification to the division and for request for claim amount. Notification to
the department and requests for claim amount shall be made in writing and
directed to the MO HealthNet Division in one of the manners specified above in
subsection (7)(D) of this rule.
(A)
Notifications and requests shall contain, at a minimum, the participant's name,
date of birth, participant number, Social Security number, date of incident or
injury, and the names of attorneys, insurers, and other authorized agents of
the participant.
(B) Incomplete
notifications and requests will be returned to the requestor for completion
without processing.
(C) Requests
from agents of the participant must be accompanied by a letter of
representation on the agent's official letterhead and must include a valid,
currently dated, HIPAA release signed by the participant or a person with
verifiable authority to sign for release of the participant's protected
information. Proof of verifiable authority must be sent in with the HIPAA
release.
(D) Claim update requests
must not be submitted until the original claim request has been fully processed
and a response sent.
(E) Failure to
comply will result in rejection of premature claim update
requests.
(10)
Pro rata claim reduction for attorney fees. A participant, his
agents, or attorneys may request from the division a pro rata
reduction of the claim amount based upon the total attorney fees and reasonable
expenses approved by the division and actually incurred by the participant in
pursuit of the claims against the liable third party(s).
(A) Any request for a pro
rata reduction in the claim shall be made to the division in writing
and include all necessary information and supporting documentation regarding
the settlement or recovery, including but not limited to:
1. The total amount of settlement or
recovery;
2. The total amount of
the settlement or recovery which is compensation for medical treatment related
to the incident;
3. The total
amount of contractual attorney fees incurred;
4. The itemized list with detailed
description and total amount of reasonable division-approved
expenses;
5. A detailed listing of
the claimed expenses with individual items and amounts claimed; and
6. A copy of any written documentation of the
settlement or recovery terms.
A. All
settlement documentation and information shall be kept strictly confidential by
the division and its staff.
(B) No pro rata reduction shall be binding
without prior written assurance by the participant or his or her representative
that the reported settlement or recovery is final and includes all sources of
recovery from the liable third party.
(C) If there are multiple liable third party
sources of recovery then the request shall clearly specify a bulk pro rata on
all the recoveries or a separate pro rata for each separate recovery and
identify any unpaid claims not yet recovered.
(D) The pro rata reduction
shall be determined using the following pro rata formula:
1. The participant's total actual attorney's
fees and approved expenses divided by the total recovery equals a percentage;
and
2. The total due the division
times that percentage equals the amount that is the division's pro
rata share of attorney's fees and expenses; and
3. The total due the division less the
division's pro rata share identified above equals the dollar
amount of the reduced pro rata claim due the
division.
(11)
Procedure for participant's handling receipt of money or benefits from liable
third party or insurer. Upon receipt of money or benefits from a liable third
party or insurer the participant, his agents, and attorneys shall immediately
notify the division and either-
(A) Pay the
division from the recovery for related medical treatment up to the full amount
of the division's current claim of medical expenses paid by the division on
behalf of the participant within sixty (60) days of receipt of the money or
benefits; or
(B) Place the full
amount of the recovery in a trust account for the benefit of the division and
immediately institute a proceeding for judicial or administrative determination
of the division's rights to that portion of the recovery which is compensation
for related medical treatment the division has paid on behalf of the
participant.
(12)
Insurance payments where the division asserts a claim. Any payment by any
insurer which is from medical payment coverage is subject to the claim of the
division for recovery of medical expenses up to the total amount of the
department's claim.
(13) Informal
process to dispute the amount of the division's claim. If a participant
disputes the amount claimed by the division, the participant or the
participant's attorney shall first make a written request to the division
within fifteen (15) days of notification of the division's claim amount to
review the claim amount for specific alleged errors for correction before
seeking other avenues for resolution of the dispute.
(A) Those items which may be reviewed
informally for correction may include, but are not limited to:
1. Miscalculation of pro rata
reduction;
2. Inclusion of charges
for services not related to the participant's claim against the liable third
party giving rise to the claim;
3.
Omission of charges for services related to the participant's claim against the
liable third party giving rise to the claim;
4. Incorrect amounts billed or paid for
medical assistance;
5.
Miscalculation within the billing statement;
6. Claims that the treatments billed were not
actually provided to the participant; and
7. Claims that the person identified in the
billing statement is not the same person identified in the division's
claim.
(B) Written
requests for informal review of a disputed claim shall be delivered to the MO
HealthNet Division, Third Party Liability Unit, PO Box 6500, 615 Howerton
Court, Jefferson City, MO 65102 or may be sent by facsimile transmission (573)
526-1162 or e-mail address MHD.costrecovery@dss.mo.gov.
(C) Participants not represented by an
attorney or other legal representative may request informal review by oral
communication in person or by telephone by calling the Third Party Liability
Unit if written communication is not a reasonable form of communication due to
disability or other extenuating circumstance.
(D) Upon receipt of a complete and detailed
request for informal review due to a participant's dispute of the claim, the
division shall provide a written response to the requesting participant, or his
or her representative.
(E) If the
informal dispute procedure does not resolve the dispute of the claim to the
satisfaction of the participant, the participant may seek resolution of the
disputed claim through the procedures set out in section
208.080,
RSMo, after receipt of the division's written response following the division's
review of the dispute.
(F) Failure
to pursue resolution through this informal procedure before seeking resolution
through other avenues shall be a defense of failure to exhaust administrative
remedies for the division.
Notes
*Original authority: 208.201, RSMo 1987, amended 2007 and 208.215, RSMo 1981, amended 1982, 1987, 1990, 1993, 1996, 2005, 2007, 2010.
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