SYNOPSIS OF WV CODE § 9-5-11, §9-5-11c

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 recipients 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 § 9-5-11c, 

Right of the DHHR to recover medical assistance

(a) Upon the death of a person who was fifty-five years of age or older at that time the person received welfare assistance consisting of nursing facility services, home and community-based services, and related hospital and prescription drug services, the department of health and human resources, in addition to any other available remedy, may file a claim or lien against the estate of the recipient for the total amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription druf services provided for the benefit of the recipient.  Claims so filed shall be classified as and included in the class of debts due the state

(b)  The department may recover pursuant to subsection (a) only after the death of the individual's surviving spouse, if any and only after such time as the individual has no surviving children under the age of twenty-one, or when the individual has no surviving children who meet the Social Security Act's definition of blindness or permanent and total disability.

(c)  The state shall have the right to place a lien upon the property of individuals who are inpatients in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution who, after notice and an opportunity for a hearing, the state has deemed to be permanently institutionalized.  This lien shall be in an amount equal to Medicaid expenditures for services provided by a nursing facility, intermediate care facility for the mentally retarded or other medical institution, and shall be rendered against the proceeds of the sale of property except for a minimal amount reserved for the individual's personal needs.  Any such lien shall dissolve upon that individuals discharge from the medical institution.  The secretary has authority to compromise or otherwise reduce the amount of this lien in cases where enforcement would create a hardship.

(d)  No lien may be imposed on such individual's home when the home is the lawful residence of: (1) The spouse of the individual; (2) the individual's child who is under the age of twenty-one; (3) the individual's child meets the Social Security Act's definition of blindness or permanent and total disability; or (4) the individual's sibling has an equity interest in the home and was residing in the home for a period of at least one year immediately before the date of the individual's admission to a medical institution.

(e)   The filing of a clam, pursuant to this section, shall neither reduce nor diminish the general claims of the department of health and human resources, except that such department shall not receive double recovery for the same expenditure.  The death of the recipient shall neither extinguish nor diminish any right of such department to recover.  Nothing in this section affects or prevents a proceeding to enforce a lien pursuant to this section or a proceeding to set aside a fraudulent conveyance.

(f)  Any clam or lien imposed pursuant to this section is effective for the full amount of medical assistance provided bu Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services.  Said lien attaches and is perfected automatically as of the beginning date of medical assistance, the date when recipient first receives treatment for which the department of health and human resources may be obligated to provide medical assistance.  A claim may be waived by such department, if such department determines, pursuant to applicable federal law and rules and regulation, that the claim will cause substantial hardship to the surviving dependents of the deceased.

(g) Upon the effective date of the section, the attorney general, on behalf of the state of west Virginia, shall commence an action in a court of competent jurisdiction to test the validity, constitutionality, and the ability of the Congress of the United States to mandate the implementation of this section.  This subsection does not limit the right of others, including recipient, to intervene in any litigation nor does it limit the discretion of the attorney general or appropriate counsel to seek affected persons to act as parties to the litigation, either individually or as a class.