208.215. Payer of last resort--liability for debt due the state, ceiling--rights of department, when, procedure, exception--report of injuries required, form, recovery of funds--recovery of medical as
Payer of last resort--liability for debt due the state,ceiling--rights of department, when, procedure, exception--reportof injuries required, form, recovery of funds--recovery ofmedical assistance paid, when--court may adjudicate rights ofparties, when.
208.215. 1. MO HealthNet is payer of last resort unless otherwisespecified by law. When any person, corporation, institution, public agencyor private agency is liable, either pursuant to contract or otherwise, to aparticipant receiving public assistance on account of personal injury to ordisability or disease or benefits arising from a health insurance plan towhich the participant may be entitled, payments made by the department ofsocial services or MO HealthNet division shall be a debt due the state andrecoverable from the liable party or participant for all payments made inbehalf of the participant and the debt due the state shall not exceed thepayments made from MO HealthNet benefits provided under sections 208.151 to208.158 and section 208.162* and section 208.204 on behalf of theparticipant, minor or estate for payments on account of the injury,disease, or disability or benefits arising from a health insurance programto which the participant may be entitled.
2. The department of social services, MO HealthNet division, or itscontractor may maintain an appropriate action to recover funds paid by thedepartment of social services or MO HealthNet division or its contractorthat are due under this section in the name of the state of Missouriagainst the person, corporation, institution, public agency, or privateagency liable to the participant, minor or estate.
3. Any participant, minor, guardian, conservator, personalrepresentative, estate, including persons entitled under section 537.080,RSMo, to bring an action for wrongful death who pursues legal rightsagainst a person, corporation, institution, public agency, or privateagency liable to that participant or minor for injuries, disease ordisability or benefits arising from a health insurance plan to which theparticipant may be entitled as outlined in subsection 1 of this sectionshall upon actual knowledge that the department of social services or MOHealthNet division has paid MO HealthNet benefits as defined by thischapter promptly notify the MO HealthNet division as to the pursuit of suchlegal rights.
4. Every applicant or participant by application assigns his right tothe department of social services or MO HealthNet division of any fundsrecovered or expected to be recovered to the extent provided for in thissection. All applicants and participants, including a person authorized bythe probate code, shall cooperate with the department of social services,MO HealthNet division in identifying and providing information to assistthe state in pursuing any third party who may be liable to pay for care andservices available under the state's plan for MO HealthNet benefits asprovided in sections 208.151 to 208.159 and sections 208.162* and 208.204.All applicants and participants shall cooperate with the agency inobtaining third-party resources due to the applicant, participant, or childfor whom assistance is claimed. Failure to cooperate without good cause asdetermined by the department of social services, MO HealthNet division inaccordance with federally prescribed standards shall render the applicantor participant ineligible for MO HealthNet benefits under sections 208.151to 208.159 and sections 208.162* and 208.204. A recipient who has noticeor who has actual knowledge of the department's rights to third-partybenefits who receives any third-party benefit or proceeds for a coveredillness or injury is either required to pay the division within sixty daysafter receipt of settlement proceeds the full amount of the third-partybenefits up to the total MO HealthNet benefits provided or to place thefull amount of the third-party benefits in a trust account for the benefitof the division pending judicial or administrative determination of thedivision's right to third-party benefits.
5. Every person, corporation or partnership who acts for or on behalfof a person who is or was eligible for MO HealthNet benefits under sections208.151 to 208.159 and sections 208.162* and 208.204 for purposes ofpursuing the applicant's or participant's claim which accrued as a resultof a nonoccupational or nonwork-related incident or occurrence resulting inthe payment of MO HealthNet benefits shall notify the MO HealthNet divisionupon agreeing to assist such person and further shall notify the MOHealthNet division of any institution of a proceeding, settlement or theresults of the pursuit of the claim and give thirty days' notice before anyjudgment, award, or settlement may be satisfied in any action or any claimby the applicant or participant to recover damages for such injuries,disease, or disability, or benefits arising from a health insurance programto which the participant may be entitled.
6. Every participant, minor, guardian, conservator, personalrepresentative, estate, including persons entitled under section 537.080,RSMo, to bring an action for wrongful death, or his attorney or legalrepresentative shall promptly notify the MO HealthNet division of anyrecovery from a third party and shall immediately reimburse the departmentof social services, MO HealthNet division, or its contractor from theproceeds of any settlement, judgment, or other recovery in any action orclaim initiated against any such third party. A judgment, award, orsettlement in an action by a recipient to recover damages for injuries orother third-party benefits in which the division has an interest may not besatisfied without first giving the division notice and a reasonableopportunity to file and satisfy the claim or proceed with any action asotherwise permitted by law.
7. The department of social services, MO HealthNet division or itscontractor shall have a right to recover the amount of payments made to aprovider under this chapter because of an injury, disease, or disability,or benefits arising from a health insurance plan to which the participantmay be entitled for which a third party is or may be liable in contract,tort or otherwise under law or equity. Upon request by the MO HealthNetdivision, all third-party payers shall provide the MO HealthNet divisionwith information contained in a 270/271 Health Care Eligibility BenefitsInquiry and Response standard transaction mandated under the federal HealthInsurance Portability and Accountability Act, except that third-partypayers shall not include accident-only, specified disease, disabilityincome, hospital indemnity, or other fixed indemnity insurance policies.
8. The department of social services or MO HealthNet division shallhave a lien upon any moneys to be paid by any insurance company or similarbusiness enterprise, person, corporation, institution, public agency orprivate agency in settlement or satisfaction of a judgment on any claim forinjuries or disability or disease benefits arising from a health insuranceprogram to which the participant may be entitled which resulted in medicalexpenses for which the department or MO HealthNet division made payment.This lien shall also be applicable to any moneys which may come into thepossession of any attorney who is handling the claim for injuries, ordisability or disease or benefits arising from a health insurance plan towhich the participant may be entitled which resulted in payments made bythe department or MO HealthNet division. In each case, a lien notice shallbe served by certified mail or registered mail, upon the party or partiesagainst whom the applicant or participant has a claim, demand or cause ofaction. The lien shall claim the charge and describe the interest thedepartment or MO HealthNet division has in the claim, demand or cause ofaction. The lien shall attach to any verdict or judgment entered and toany money or property which may be recovered on account of such claim,demand, cause of action or suit from and after the time of the service ofthe notice.
9. On petition filed by the department, or by the participant, or bythe defendant, the court, on written notice of all interested parties, mayadjudicate the rights of the parties and enforce the charge. The court mayapprove the settlement of any claim, demand or cause of action eitherbefore or after a verdict, and nothing in this section shall be construedas requiring the actual trial or final adjudication of any claim, demand orcause of action upon which the department has charge. The court maydetermine what portion of the recovery shall be paid to the departmentagainst the recovery. In making this determination the court shall conductan evidentiary hearing and shall consider competent evidence pertaining tothe following matters:
(1) The amount of the charge sought to be enforced against therecovery when expressed as a percentage of the gross amount of therecovery; the amount of the charge sought to be enforced against therecovery when expressed as a percentage of the amount obtained bysubtracting from the gross amount of the recovery the total attorney's feesand other costs incurred by the participant incident to the recovery; andwhether the department should, as a matter of fairness and equity, bear itsproportionate share of the fees and costs incurred to generate the recoveryfrom which the charge is sought to be satisfied;
(2) The amount, if any, of the attorney's fees and other costsincurred by the participant incident to the recovery and paid by theparticipant up to the time of recovery, and the amount of such fees andcosts remaining unpaid at the time of recovery;
(3) The total hospital, doctor and other medical expenses incurredfor care and treatment of the injury to the date of recovery therefor, theportion of such expenses theretofore paid by the participant, by insuranceprovided by the participant, and by the department, and the amount of suchpreviously incurred expenses which remain unpaid at the time of recoveryand by whom such incurred, unpaid expenses are to be paid;
(4) Whether the recovery represents less than substantially fullrecompense for the injury and the hospital, doctor and other medicalexpenses incurred to the date of recovery for the care and treatment of theinjury, so that reduction of the charge sought to be enforced against therecovery would not likely result in a double recovery or unjust enrichmentto the participant;
(5) The age of the participant and of persons dependent for supportupon the participant, the nature and permanency of the participant'sinjuries as they affect not only the future employability and education ofthe participant but also the reasonably necessary and foreseeable futurematerial, maintenance, medical rehabilitative and training needs of theparticipant, the cost of such reasonably necessary and foreseeable futureneeds, and the resources available to meet such needs and pay such costs;
(6) The realistic ability of the participant to repay in whole or inpart the charge sought to be enforced against the recovery when judged inlight of the factors enumerated above.
10. The burden of producing evidence sufficient to support theexercise by the court of its discretion to reduce the amount of a provencharge sought to be enforced against the recovery shall rest with the partyseeking such reduction.
11. The court may reduce and apportion the department's or MOHealthNet division's lien proportionate to the recovery of the claimant.The court may consider the nature and extent of the injury, economic andnoneconomic loss, settlement offers, comparative negligence as it appliesto the case at hand, hospital costs, physician costs, and all otherappropriate costs. The department or MO HealthNet division shall pay itspro rata share of the attorney's fees based on the department's or MOHealthNet division's lien as it compares to the total settlement agreedupon. This section shall not affect the priority of an attorney's lienunder section 484.140, RSMo. The charges of the department or MO HealthNetdivision or contractor described in this section, however, shall takepriority over all other liens and charges existing under the laws of thestate of Missouri with the exception of the attorney's lien under suchstatute.
12. Whenever the department of social services or MO HealthNetdivision has a statutory charge under this section against a recovery fordamages incurred by a participant because of its advancement of anyassistance, such charge shall not be satisfied out of any recovery untilthe attorney's claim for fees is satisfied, irrespective of whether or notan action based on participant's claim has been filed in court. Nothingherein shall prohibit the director from entering into a compromiseagreement with any participant, after consideration of the factors insubsections 9 to 13 of this section.
13. This section shall be inapplicable to any claim, demand or causeof action arising under the workers' compensation act, chapter 287, RSMo.From funds recovered pursuant to this section the federal government shallbe paid a portion thereof equal to the proportionate part originallyprovided by the federal government to pay for MO HealthNet benefits to theparticipant or minor involved. The department or MO HealthNet divisionshall enforce TEFRA liens, 42 U.S.C. 1396p, as authorized by federal lawand regulation on permanently institutionalized individuals. Thedepartment or MO HealthNet division shall have the right to enforce TEFRAliens, 42 U.S.C. 1396p, as authorized by federal law and regulation on allother institutionalized individuals. For the purposes of this subsection,"permanently institutionalized individuals" includes those people who thedepartment or MO HealthNet division determines cannot reasonably beexpected to be discharged and return home, and "property" includes thehomestead and all other personal and real property in which the participanthas sole legal interest or a legal interest based upon co-ownership of theproperty which is the result of a transfer of property for less than thefair market value within thirty months prior to the participant's enteringthe nursing facility. The following provisions shall apply to such liens:
(1) The lien shall be for the debt due the state for MO HealthNetbenefits paid or to be paid on behalf of a participant. The amount of thelien shall be for the full amount due the state at the time the lien isenforced;
(2) The MO HealthNet division shall file for record, with therecorder of deeds of the county in which any real property of theparticipant is situated, a written notice of the lien. The notice of lienshall contain the name of the participant and a description of the realestate. The recorder shall note the time of receiving such notice, andshall record and index the notice of lien in the same manner as deeds ofreal estate are required to be recorded and indexed. The director or thedirector's designee may release or discharge all or part of the lien andnotice of the release shall also be filed with the recorder. Thedepartment of social services, MO HealthNet division, shall provide paymentto the recorder of deeds the fees set for similar filings in connectionwith the filing of a lien and any other necessary documents;
(3) No such lien may be imposed against the property of anyindividual prior to the individual's death on account of MO HealthNetbenefits paid except:
(a) In the case of the real property of an individual:
a. Who is an inpatient in a nursing facility, intermediate carefacility for the mentally retarded, or other medical institution, if suchindividual is required, as a condition of receiving services in suchinstitution, to spend for costs of medical care all but a minimal amount ofhis or her income required for personal needs; and
b. With respect to whom the director of the MO HealthNet division orthe director's designee determines, after notice and opportunity forhearing, that he cannot reasonably be expected to be discharged from themedical institution and to return home. The hearing, if requested, shallproceed under the provisions of chapter 536, RSMo, before a hearing officerdesignated by the director of the MO HealthNet division; or
(b) Pursuant to the judgment of a court on account of benefitsincorrectly paid on behalf of such individual;
(4) No lien may be imposed under paragraph (b) of subdivision (3) ofthis subsection on such individual's home if one or more of the followingpersons is lawfully residing in such home:
(a) The spouse of such individual;
(b) Such individual's child who is under twenty-one years of age, oris blind or permanently and totally disabled; or
(c) A sibling of such individual who has an equity interest in suchhome and who was residing in such individual's home for a period of atleast one year immediately before the date of the individual's admission tothe medical institution;
(5) Any lien imposed with respect to an individual pursuant tosubparagraph b of paragraph (a) of subdivision (3) of this subsection shalldissolve upon that individual's discharge from the medical institution andreturn home.
14. The debt due the state provided by this section is subordinate tothe lien provided by section 484.130, RSMo, or section 484.140, RSMo,relating to an attorney's lien and to the participant's expenses of theclaim against the third party.
15. Application for and acceptance of MO HealthNet benefits underthis chapter shall constitute an assignment to the department of socialservices or MO HealthNet division of any rights to support for the purposeof medical care as determined by a court or administrative order and of anyother rights to payment for medical care.
16. All participants receiving benefits as defined in this chaptershall cooperate with the state by reporting to the family support divisionor the MO HealthNet division, within thirty days, any occurrences where aninjury to their persons or to a member of a household who receives MOHealthNet benefits is sustained, on such form or forms as provided by thefamily support division or MO HealthNet division.
17. If a person fails to comply with the provision of any judicial oradministrative decree or temporary order requiring that person to maintainmedical insurance on or be responsible for medical expenses for a dependentchild, spouse, or ex-spouse, in addition to other remedies available, thatperson shall be liable to the state for the entire cost of the medical careprovided pursuant to eligibility under any public assistance program onbehalf of that dependent child, spouse, or ex-spouse during the period forwhich the required medical care was provided. Where a duty of supportexists and no judicial or administrative decree or temporary order forsupport has been entered, the person owing the duty of support shall beliable to the state for the entire cost of the medical care provided onbehalf of the dependent child or spouse to whom the duty of support isowed.
18. The department director or the director's designee maycompromise, settle or waive any such claim in whole or in part in theinterest of the MO HealthNet program. Notwithstanding any provision inthis section to the contrary, the department of social services, MOHealthNet division is not required to seek reimbursement from a liablethird party on claims for which the amount it reasonably expects to recoverwill be less than the cost of recovery or for which recovery efforts willnot be cost-effective. Cost-effectiveness is determined based on thefollowing:
(1) Actual and legal issues of liability as may exist between therecipient and the liable party;
(2) Total funds available for settlement; and
(3) An estimate of the cost to the division of pursuing its claim.
(L. 1981 H.B. 901 § 1, A.L. 1982 H.B. 1086, A.L. 1987 H.B. 518, A.L. 1990 S.B. 765, A.L. 1993 H.B. 564, A.L. 1996 S.B. 869, A.L. 2005 S.B. 539, A.L. 2007 S.B. 577)*Section 208.162 was repealed by S.B. 539, 2005.
CROSS REFERENCE:
Division of medical services has right to payment from insurers or other obligated parties for health care services, RSMo 376.819
(1998) The amended statute is remedial and may be applied retroactively and is more specific than section 473.398 where it conflicts. Pierce v. State, Department of Social Services, 969 S.W.2d 814 (W.D.Mo.).