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Medical Malpractice

Medicaid "Liens" Continued from page 31

legal liability to make payments for those services” under §15-109(d), Medicaid recipients retain the right to pursue payments from responsible

third parties, including the

right to pursue recovery of medical expenses paid by the Medicaid program. While the Department undoubtedly has the right to intervene and prosecute a direct action against a responsible third party under the “deemed” assignment, it never does. Indeed, Maryland’s statutory scheme counts on Medicaid Recipients to prosecute claims for reimbursement of Medicaid expenditures against responsible third parties and to thereafter hold recovered funds for the benefit of the Department. After Ahlborn, the Department could only satisfy its subrogation interest out of that portion of a Recipient’s recovery intended to compensate for past medical expenses, and conversely, could not satisfy its subrogation interest out of any portion of a recovery intended to compensate for other items of damage. But though this clear rule emerged after Ahlborn, the existence of the rule did not immediately or materially change how most of us dealt with the Department. Even before Ahlborn, we routinely argued, and the Department generally

seemed to accept, that it should consent to a deeper discount of it subrogation interest on those cases where the chances for a “full recovery” were materially limited by liability or other concerns. Ahlborn gave us the ability to argue that the Department must reduce – rather than should reduce – its claim for reimbursement in such cases, and also provided a more precise formula for calculating the amount of that reduction. Issues remained, of course, as to how the full value of the claim should be calculated, and as to how the total recovery should be allocated amongst the various elements of the Recipient’s damage claims. But because the Department continued to be largely “reasonable” in dealing with these issues and in responding to our requests for compromise, we continued to do business “as usual” with the Department after Ahlborn. At least for a time. In March of 2009, the United States District Court for

the Western District of Pennsylvania issued an interlocutory decision and memorandum opinion, Tristani v. Richman, 609 F. Supp. 2d 423 (W.D. Pa. 2009), which expanded and extended the reasoning of Ahlborn. In essence, the court held that the anti lien and anti recovery provisions

of federal

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Medicaid law prohibited all efforts by Pennsylvania to recover medical assistance benefits from the Recipient. In Ahlborn, the Supreme Court had “assumed” along with the parties – but specifically had not decided – that certain provisions of the federal Medicaid law created an exception to the anti lien provision of §1396p(a) with regard to payments for past medical care. Similarly, the Ahlborn Court had made clear that it was not considering the impact of the “anti-recovery” provision5

of federal Medicaid law on the state’s right to

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Likewise, subsection (b) [42 U.S.C. §1396p(b) – the anti recovery provision] would appear to forestall any attempt by the State to recover benefits paid at least from the “individual.” See, e.g. Martin ex. rel. Hoff v. Rochester, 642 N.W. 2d 1, 8, n.6 (Minn 2002);Wallace v. Estate of Jackson, 972 P.2d 446, 450 (Utah 1998) (Durham, J., dissenting) (reading §1396p to prohibi[t] not only liens against Medicaid recipients but also any recovery for medical assistance correctly paid”). Te parties here, however, neither cite nor discuss the anti recovery provision of §1396p(b). Accordingly we leave for another day the question of its import on this analysis.

Ahlborn, 547 U.S. at 284, n. 13. In Tristani, the court undertook to decide the questions left unanswered in Ahlborn. In the view of the Tristani

5 42 U.S.C. §1396p provides not only that “[n]o lien may be imposed against the property of any individual…on account of medical assistance [correctly paid]”, the “anti lien provision”, but also that “[n]o adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made [except in circumstances not relevant here]”, the “anti recovery provision”.

34 Trial Reporter / Summer 2010


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