SYNOPSIS OF WV CODE § 9-5-11

Title XIX of the SOCIAL SECURITY ACT

WV CODE §16-29D-5  

WV Code § 9-5-11

·         Assignment/Subrogation Rights by the Department of Health and Human Resources (DHHR)

-          Medicaid has the right to recover from third or first party settlements, for medical bills paid on behalf of Medicaid recipients relative to injuries sustained as a result of a trauma/tort, personal injury, or work related injury

-          The Department shall be legally subrogated to the right of the recipient against the person so liable, but only to the extent to the reasonable value of the medical assistance paid

-          The subrogation claim shall not exceed the amount of medical expenses for the injury.

-          The right of assignment/subrogation includes all portions of the cause of action - settlement, compromise, judgment or award.

-          Any settlement, compromise, judgment or award that excludes or limits the cost of medical services shall not preclude the Department from enforcing its rights.

-          The secretary/commissioner may compromise, settle, and execute a release of any such claim.

-          At Trial – The jury should not be informed of the Department interest.

-          Upon an entry of judgment on the verdict, the trial judge shall direct that an amount equal to the amount of medical assistance given be withheld and paid to the Medicaid.

-          Attorneys’ Fee is deducted in proportion to the fee arrangement made between the recipient and his/her attorney of record so that the Department shall bear the Pro Rata portion of fees and the appropriate ratio of expenses.

-          No judgment, award, of or settlement, shall be satisfied without first giving the Department notice and reasonable opportunity to establish its interest.

-          If after being notified in writing of a subrogation claim and recipient's liability for failure to subrogate the Department a recipient disposes of the funds representing the judgment without written approval of the Department that person shall be liable to the Department for any amount that is not recoverable.

WV Code § 9-5-11a, Release of Information

-          All recipients of medical assistance under Medicaid shall be deemed to authorize all third parties to release to the Department information needed to secure its rights as assignee.

-          Every insurer and provider of medical care should furnish records or information pertaining to the coverage of any individual or medical benefits paid under a policy if the Department

¨          Requests the information in writing

¨          Certify that individual is an applicant for medical assistance.  The Department requests records or information necessary to determine if insurance benefits have or should have been claimed or paid.

WV Code § 9-5-11b, Notice of Action or Claim

-          If either the medical assistance recipient or the Department brings an action or claim against a third person the recipient, his attorney shall within 30 days of filing the action, give to the other (DHHR) written notice of the action or claim by certified mail.  This notice shall contain the name of the third person and the court in which the action is brought.

-          If the Department institute the action, the notice shall advise the recipient of their right to bring the action in their name.

-          Proof of such notice shall be filed in said action.

-          Either party may consolidate or enter the action as long as the proceedings are not delayed.

Title XIX of the Social Security Act, § 1905(a)(45)

• As a condition of eligibility, recipients assign to the state of West Virginia their right to recover from liable third and first party settlements.

Title XIX of the Social Security Act, § 1912(b)

-          States that the remainder of any amounts collected under an assignment and pursuant to Section 1912(a) shall be paid to the recipient after the state recovers (with appropriate reimbursement to the Federal government) what it paid on behalf of the recipient.

-          The Amount collected under an assignment shall be retained by the State as is necessary to reimburse it for medical assistance payment (with appropriate reimbursement of the Federal Government to the extent of its participation in the financing of such medical assistance).  The remainder of such amount collected shall be paid to the Medicaid recipient.

WV Code §16-29D-5, Coordination of Benefits

-          In all events, the Worker’s Compensation Fund “shall be considered the primary payer for health care services related to work-related injuries and diseases ruled compensable as provided in Article
4 [§23-4-1], chapter 23 of this Code.

-          In no event shall the State Medicaid program be considered a primary insurance contract”.

-         Under this ruling/code, Medicaid should not pay any benefits and when Medicaid paid, Medicaid is entitled to be reimbursed by the Worker’s Compensation Fund for the amounts it has paid.