Mo. Code Regs. tit. 13 § 70-4.120
Current through Register Vol. 49, No.12, June 17, 2024
Section 13 CSR 70-4.120 - Department is the Payer of Last Resort, Department's Claim for Recovery, Participant's Duty of CooperationPURPOSE: 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; and2. 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; and5. 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; and6. 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; or2. By facsimile transmission (573-526-1162) to MO HealthNet Division, Third Party Liability Unit; or3. By email to MO HealthNet Division, Third Party Liability Unit sent to the email address MHD.costre-covery@dss.mo.gov; or4. 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; and6. 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; and2. 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; and3. 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; and7. 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. AUTHORITY: sections 208.201 and 208.215, RSMo Supp. 2013.* Original rule filed Sept. 26, 2013, effective March 30, 2014. Amended by Missouri Register June 1, 2022/Volume 47, Number 11, effective 7/31/2022Amended by Missouri Register October 16, 2023/volume 48, Number 20, effective 11/30/2023.*Original authority: 208.201, RSMo 1987, amended 2007 and 208.215, RSMo 1981, amended 1982, 1987, 1990, 1993, 1996, 2005, 2007, 2010.