Current through Register Vol. 54, No. 12, March 23, 2024
(a)
With respect to claims asserted by the MA Program against moneys owed by third
parties as a result of tort claims asserted by a beneficiary of MA benefits,
the Department will only recover from that portion of a tort recovery which
represents payment for medical care by the third party. The term "beneficiary"
includes both present and former recipients of MA benefits, and includes
individuals receiving benefits through an MA managed care
organization.
(b) In determining
the portion of a tort recovery that represents payment for medical care by a
third party, the Department will apply the following interpretations:
(1) Unless the Department intervenes in a
lawsuit or sues separately, beneficiaries, including beneficiaries who are
minors, are vested with the right to recover injury related medical expenses
paid by the MA Program as part of their cause of action for other damages, and
absent an express court order to the contrary are deemed to recover medical
expenses as part of any tort recovery.
(2) In the absence of a court order
allocating tort proceeds among categories of damages, 1/2 of the net proceeds
are allocated by law to be available to repay injury-related MA expenses. The
amount of net proceeds is computed by deducting from the gross proceeds the
attorney's fees, litigation costs and medical expenses relating to the injury
that were paid for by the beneficiary prior to the settlement of the injured
beneficary's action or claim.
(3)
If the beneficiary or other party seeks to obtain a court order limiting the
portion of the tort recovery from which MA reimbursement may be paid to an
amount less than 1/2 of net proceeds, or excluding amounts paid by the MA
Program from the recovery, the Department shall be given fair notice and an
opportunity to protect its interest.
(4) Failure to provide the Department with
fair notice and an opportunity to protect its interest, prior to obtaining a
court order limiting the portion of a tort recovery from which MA reimbursement
may be paid, constitutes a violation of section 1408(a)(1) of the Public
Welfare Code (62 P. S. §
1408(a)(1)).
(5) The Department is not bound by a private
agreement between the parties to a tort claim regarding allocation of the
proceeds.
(6) The Department's
claims against third parties for reimbursement of MA cannot be released by a
beneficiary without the Department's express consent in writing.
(c) The following procedures
provide the Department with fair notice and an opportunity to protect its
interest prior to entry of an order subject to subsection (b)(3):
(1) In a case when the beneficiary seeks to
exclude injury-related medical expenses paid by the MA Program from the
recovery, the beneficiary shall compy with the notice of suit requirements in
section 1409(b)(5) of the Public Welfare Code (62 P. S. §
1409(b)(5)) and include a
statement that the beneficiary will seek to exclude moneys paid by the MA
Program from any recovery.
(2) In a
case when the beneficiary seeks an allocation of tort proceeds by the court or
a trier of fact, the beneficiary shall provide the Department with reasonable
advance notice and opportunity to intervene in the case prior to the
determination.
(3) In a case when
the beneficary seeks a court order limiting the portion of the tort settlement
from which MA reimbursement may be paid to an amount less that 1/2 of the net
proceeds of any settlement, the beneficiary shall provide the Department with
reasonable advance notice of settlement before it becomes binding.
(4) In a case when a motion is to eliminate
medical expenses paid by MA from the case, the moving party shall provide the
Department with reasonable advance notice and an opportunity to intervene in
the case prior to adjudication of the motion.
(5) Thirty days advance notice is considered
reasonable advance notice under this subsection.
(6) Notices must be in writing and sent by
certified or registered mail to the Division of Third-Party Liability,
Department of Human Services, P. O. Box 8486, Harrisburg, PA 17105 and include
the following information:
(i) The name of the
beneficiary.
(ii) The beneficiary's
MA identification number, if known.
(iii) The beneficiary's date of
birth.
(iv) The name of the
beneficiary's attorney, if applicable.
(v) The insurance carriers, if
applicable.
(vi) The date and
specific injuries giving rise to the claim.
(vii) The court and docket number in which
the claim is pending, if applicable.
(d) If a court does not adjudicate the amount
of the Department's claim against a settlement, the Bureau of Hearings and
Appeals has jurisdiction to hear and determine an appeal by a beneficiary
contesting the amount of the Department's claim.