Nursing Home Litigation


beneficiary as tort plaintiff recovered for future medical care; the anti-lien provision would plainly bar that. Te requirement that Medicaid programs as a condition of eligibility require individual beneficiaries “to cooperate with the State in identifying ... any third party who may be liable to pay for care and services available under the [Medicaid state] plan,” 42 U.S.C. § 1396k(a)(1)(C), would appear to stand on a different footing. A related provision recognizes that state Medicaid programs collecting funds under an assignment might collect more than was expended so that after reimbursing itself for payments made, “the remainder of such amount collected shall be paid to such individual.” 42 U.S.C. § 1396k(b).


Significantly, the Medicaid agencies themselves


disavow any right to obtain compensation for future medical care. Tat being the case, it is difficult to square that with their claim based on the statute to seize other property - compensation for future medical care – from plaintiffs. Te cases that allow Medicaid agencies to recover


compensation for past medical expenses from the recovery for future medical costs routinely, like Matey and K.C.S., generally quote Ahlborn without parsing the specific statutory provisions. See, e.g., Perez v. Henneberry, D.Colo., April 26, 2011. Tristiani is an exception, but it did so for the somewhat different purpose of reviewing the district court decision in that case that the assignment provision authorized suits by Medicaid against third parties, not beneficiaries, picking up an issue consciously not resolved in Ahlborn. Yet another aspect of the issue is the interplay with the


Similarly, the K.C.S. court’s confusion about what the


plaintiff recovered in settlement and what Medicaid paid by way of benefits results in giving the future medical expenses issue short shrift. Here, as with the “rules and procedures” decisions, the cases have proceeded on reasoning that is superficial, at best, and never attempts to look at the authorities that guided the Supreme Court in its analysis in Ahlborn. In the leading case, In re Matey, 147 Idaho 604, 213 P.3d 389 (2009), the court correctly noted that most of the discussion in Ahlborn did not distinguish medical payments made from claims for future medical care. But in reading Ahlborn, it cites the Court’s discussion without acknowledging the statutory limitation upon which the Court itself relies, 42 U.S.C. § 1396a(a)(25(A), which supports the mandate in id., § 1396a(a)(25)(B), “where such a legal liability is found to exist after medical assistance has been made available ...” See also id., § 1396a(a)(25)(H) (“that to the extent that payment has been made under the State plan ... where a third party has a legal liability ...”)(emphasis added). To be sure, id., § 1396k(a) looks toward liability for care to be provided in the future, and no doubt the states have authority to pursue such claims, but these different founts of authority require discrete analysis and treatment.


Te authority to pursue recovery for past claims does not,


42 U.S.C. § 1396a(a)(25(A) and (B), by itself give state Medicaid agencies any authority to claim recovery from what a Medicaid


12 Trial Reporter / Fall 2011


payback trust provisions, which like 42 U.S.C. § 1396k(b) contemplate holding funds for later reimbursement. Certainly, the current trend in the cases is to mash 42


U.S.C. § 1396a(a)(25)(A) and (B) together with 42 U.S.C. § 1396k(a)(1)(C) and (b) and allow recovery for past medical care against recovery for future medical care. Whether that was an issue lurking behind the Court’s unanimous decision in Ahlborn and whether anyone will articulate how and why to keep those provisions separate is problematical.


Biography Ron M. Landsman is the principal of Ron M. Landsman,


P.A., focusing on Medicaid, including estate recoveries,


supplemental needs trusts, estate and disability planning, and guardianship and conservatorship in Washington, D.C., and Maryland. He received his law degree from the University of Michigan, 1974, clerked in the [old] Fifth Circuit, handled antitrust appeals at the Department of Justice for four years, mostly related to U.S. v. AT&T, and has had his own practice for the past 25 years. He is a Fellow of the National Academy of Elder Law Attorneys, a member of Special Needs Alliance, LLC, and a member of the board of directors of Shared Horizons, Inc., which manages the Wesley Vinner Memorial Trust, a d-4-C trust, in addition to bar activities in D.C. and Maryland. His office is in Rockville and he practices throughout Maryland and D.C.


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