PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Health and Recovery Services Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 08-03-073.
Title of Rule and Other Identifying Information: The department is amending WAC 388-501-0100 Subrogation.
Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on June 24, 2008, at 10:00 a.m.
Date of Intended Adoption: Not earlier than June 25, 2008.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail schilse@dshs.wa.gov, fax (360) 664-6185, by 5 p.m., on June 24, 2008.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by June 17, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This amendment clarifies the method of giving notice to the department and determining reimbursement of medical assistance (medicaid) moneys paid for an injured client.
Reasons Supporting Proposal: When the client receives a settlement or judgment from a third party and/or that third party's insurance company, or from the client's own insurance, for injuries the client has suffered and medicaid pays for the client's care, federal and state law require that the medicaid moneys paid be reimbursed up to the full amount paid out.
Statutory Authority for Adoption: 42 U.S.C. §§ 1396a, 1396k, 1396p; chapter 43.20B RCW, RCW 74.08.090.
Statute Being Implemented: RCW 74.09.180, 74.09.185, 74.08.090.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting: Wendy Boedigheimer, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-1306; Implementation and Enforcement: Roy Vervair, P.O. Box 45561, Olympia, WA 98504-5561, (360) 725-1060.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rule amendments and concludes that they do not impose a disproportionate cost impact on small businesses. As a result, the preparation of a small business economic impact statement is not required.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Roy Vervair, Health and Recovery Service[s] Administration, P.O. Box 45561, Olympia, WA 98504-5561, phone (360) 725-1060, fax (360) 586-9727, e-mail vervarv@dshs.wa.gov.
May 12, 2008
Stephanie E. Schiller
Rules Coordinator
3977.1 (a) ((A person who commits or is guilty of a private or
civil wrong doing or the insurer of that person)) The
tort-feasor or insurer of the tort-feasor, or both; and
(b) Any ((individual)) person, entity or program that is
or may be liable to ((pay for all or part of the expenditures
for medical assistance furnished under the state plan. That
liability must be based on any contract or insurance purchased
by the client or any other person on behalf of the client))
provide coverage for the illness or injuries for which the
department is providing assistance or residential care.
(2) As a condition of medical care eligibility, a client
must assign to the state any right the client may have to
receive payment from any liable third party for medical
expenses ((and/or)), assistance, or residential care.
(3) To the extent authorized by a contract executed under
RCW 74.09.522, a managed health care plan has the rights and
remedies of the department as provided in RCW 43.20B.060 and
((70.09.180)) 74.09.180.
(4) The department is not responsible ((to pay)) for
medical care payment(s) for a client whose personal injuries
are caused by the negligence or wrongdoing of another. However, the department may provide the medical care required
as a result of an injury or illness to the client if ((both of
the following apply:
(a))) the client is otherwise eligible for medical
care((; and
(b) No other liable third party has been identified at the time the claim is filed)).
(5) The department may pursue its right to recover the
value of medical care provided to an eligible client from any
liable third party or third party settlement or ((judgement))
judgment as a subrogee, assignee, or by enforcement of its
public assistance lien as provided under RCW 43.20B.040
through 43.20B.070 ((and)), RCW 74.09.180 and 74.09.185.
(6) ((When a client obtains a settlement or judgement
from a liable third party that includes compensation for
medical or residential care, the department must be reimbursed
for the payments made for the benefit of the client as a
result of the injury or illness suffered by the client.
(a) In the absence of evidence to the contrary as discussed below in subsection (6)(c), the department's rebuttable presumption is that the entire settlement or judgement, up to the amount of the medical damages suffered by the client, is intended to compensate the client for past medical expenses and will enforce its claim accordingly. The department is entitled to be reimbursed up to the full amount of medical assistance paid on behalf of the client for the medical damages related to the injury or illness suffered by the client less the department's proportionate share of attorney's fees and costs incurred in obtaining the settlement or judgement, as required by law.
(b) The department determines its net recovery by deducting its proportionate share of attorney's fees and costs from the gross medical damages amount according to the following formula, in the absence of a court-approved allocation of the medical damages or an agreement with the department establishing the allocation of medical damages:
(i) Prior to accepting or disbursing the settlement or judgement funds, the client or the client's legal representative must provide the department with documentation that a different allocation of medical damages was negotiated, proven at trial, or is being considered with the third party and/or their insurer or the client's insurance carrier in obtaining the settlement or judgement; and
(ii) If the client and the department are not able to come to an agreement as to the proper payment to be made to the department to satisfy the department's claim for reimbursement of the medical assistance paid on behalf of the client, the matter should be set before a court for an allocation hearing prior to the distribution of the settlement or judgement.
(d) If the injured client does not have legal representation in the personal injury action and does not incur attorney's fees or costs in obtaining the settlement or judgement, the department ensures that the client will receive not less than one third of the total settlement or judgement amount, or the balance of the settlement or judgement after the full amount of medical assistance is paid, whichever is greater, as satisfaction of all other damages suffered by the client;
(e) When the settlement or judgement obtained by the client exceeds the amount of the assistance paid, the department is entitled to recover up to the full amount of the medical assistance paid less the department's proportionate share of any attorney's fees and costs incurred in obtaining the settlement or judgement;
(f) When the amount of a settlement or judgement is less than or equal to the amount of the department's medical assistance payments:
(i) The department and the client and/or the client's legal representative must determine the appropriate allocation for medical damages; or
(ii) If the department and the client and/or the client's legal representative are unable to agree upon an allocation for medical damages, then a court must decide the amount the client must reimburse the department for medical assistance payments made on his or her behalf.
(g) Under no circumstances will the total amount that the department receives be less than one-third of the gross amount of the settlement or judgement, unless the department agrees in writing to a lesser amount)) Notice to the department and determining the reimbursement amount:
(a) The client or the client's legal representative must notify the department in writing at the time of filing any claim against a third party, commencing an action at law, negotiating a settlement, or accepting an offer from the liable third party. Written notices to the department under this section should be sent to:
Health and Recovery Services Administration
COB Casualty Unit
PO Box 45561
Olympia, WA 98504-5561
Fax (360) 753-3077
(b) The client or the client's legal representative must
provide the department with documentation proposing allocation
of damages, if any, to be used for settlement or to be proven
at trial.
(c) Where damages, including medical damages, have not been designated in the settlement or judgment, the client or the client's legal representative must contact the department to determine the appropriate reimbursement amount for payments the department made for the client's benefit.
(d) If the client and the department are unable to reach an agreement as to the appropriate reimbursement amount, any party may bring a motion in the superior court for a hearing to determine the amount of reimbursement to the department from settlement or judgment proceeds.
(7) ((Recovery according to the subrogation rights,
assignment, or enforcement of the lien granted to the
department is not reduced, prorated, or applied to only a
portion of a judgment, award, or settlement.)) The secretary
of the department or the secretary's designee must consent in
writing to any discharge or compromise of any settlement or
judgment of a lien created under RCW ((42.20B.060))
43.20B.060. The department considers the compromise or
discharge of a medical care lien only as authorized by federal
regulation at 42 CFR 433.139.
(8) The doctrine of equitable subrogation does not apply to defeat, reduce, or prorate any recovery made by the department that is based on its assignment, lien, or subrogation rights.
[Statutory Authority: RCW 74.08.090 and 74.09.185. 07-23-080 and 08-01-041, § 388-501-0100, filed 11/19/07 and 12/12/07, effective 12/1/08. Statutory Authority: RCW 74.04.050 and 74.08.090. 00-01-088, § 388-501-0100, filed 12/14/99, effective 1/14/00.]