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Medical Malpractice

settlement representing past medical expenses paid by the Program, while the State claimed that it should also be able to recover future medical expenses because the State would have to pay for the Recipient’s care in the future. In discussing these competing arguments, the court held that federal Medicaid law “plainly means that Medicaid Recipients must assign to the state their rights for payment from third parties for past medical expenses. Te express language extends no further than past medical expenses. Idaho’s relevant statute also supports the conclusion that the state has the right to recover only the portion of the settlement representing past medical expenses . . . Te use of the past tense demonstrates that neither the federal nor the Idaho statutes were intended to allow the state to recover money meant to compensate the recipient for future medical expenses.” Id. at 913 (emphasis added.) Matey did not overrule Hudelson, but instead purported to distinguish it on the questionable ground that the State in Matey was not seeking to be paid for its future outlays, but was instead seeking reimbursement for past outlays from settlement funds intended to compensate for future expenses. Tis distinction, of course, ignores the reality that in both Hudelson and Matey, the State was seeking to recover money meant to compensate the recipient for future medical

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expenses. Te nature of the claim sought to be satisfied by the State is irrelevant under Ahlborn in determining whether the State’s claim is consistent with federal law. Te relevant inquiry is whether the funds sought to be tapped were recovered in connection with a claim assigned to the State for past medical expenses, or whether they were recovered in connection with a non assigned claim. If the former, they can perhaps be reached by the State without violating the anti lien and anti recovery provisions, if the Tristani arguments are rejected. If the latter,Ahlborn clearly teaches that the funds cannot be reached to satisfy the State’s claim – even if the claim sought to be satisfied is one for past medical expenses. Hudelson was correctly decided. Matey was not. Notwithstanding the logical and legal flaws in the Matey

decision, the Department has continued to rely on this weak reed to support its ongoing refusal to honor the teachings of Ahlborn. Its insistence on maintaining this position has led me – and I am sure many of the readers of this article – to delve more deeply into the finer points of “Medicaid law.” Ultimately, the Department’s position led me to prepare and file a suit seeking a declaratory judgment that the Department’s handling of its Medicaid subrogation interests violates federal law. Te complaint filed against the Department in the Circuit

Court for Prince George’s County seeks a declaration that the Department’s attempt to recover from the settlement proceeds in the hands of Medicaid Recipients violates the anti lien and anti recovery provisions of federal law and that state law, to the extent it permits such conduct, is preempted. Alternatively, the complaint seeks a declaration that federal law provides only for the assignment to the Department of a Medicaid Recipient’s rights to recover for past medical expenses paid by the Department, and that federal law does not provide for assignment to the Department of a recipient’s rights to recover for future medical expenses, nor for assignment to the Department of a recipient’s rights to recover for medical expenses paid by sources other than the Department. Finally, the complaint seeks a declaration that federal law requires not only that the Department limit its subrogation claim to that portion of a Recipient’s recovery intended to compensate for past medical expenses paid by the Medicaid program, but also that the law requires the Department to reduce its subrogation claim by the Department’s proportionate share of attorney’s fees and expenses. Resolution of the important issues presented in this

1-877-895-2225 (BACK) | Se habla español 40 Trial Reporter / Summer 2010

recently filed lawsuit is months, if not years, away. And if the lawsuit settles – and that could well occur – the important issues presented by this case may yet escape judicial resolution. What then should we do in handling cases on

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