Accident Recovery by MassHealth and DTA

SECTION 5.   (A) Section 5G of chapter 18 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out, in line 3 and in line 9, the words "property damage," .

(B) Said section 5G of said chapter 18, as so appearing, is hereby further amended by inserting after the word "agency," in line 6, the following words:- risk retention group, captive insurer, third party administrator, self-insured.

(C) Said section 5G of said chapter 18, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-
          When any claimant or the claimant's heirs, estate or legal representative receives payment from a liability or workers' compensation insurer or any other third party, the claimant or the claimant's heirs, estate or legal representative shall repay to the department the total of all public financial assistance benefits provided by the department on or after the date of the loss to or on behalf of the claimant, the claimant's spouse or children, and any other individual the claimant is required by law to support; but if on the date of the loss the claimant was already eligible for public assistance benefits, the claimant or the claimant's heirs, estate or legal representative shall repay only any increase in financial assistance that occurred as a result of the accident, illness, injury, or other incident.

(D) Said section 5G of said chapter 18, as so appearing, is hereby further amended by striking out the words "and the division of medical assistance may also perfect their", in line 28, and inserting in place thereof the following words:- may also perfect its.

(E) Said section 5G of said chapter 18, as so appearing, is hereby further amended by striking out the fourth paragraph.

(F) The seventh paragraph of said section 5G of said chapter 18, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The commonwealth shall be subrogated to a claimant's entire cause of action or right to proceed against any third party and to a claimant's claim for monies to the extent of assistance provided under chapter 118.

(G) Said section 5G of said chapter 18, as so appearing, is hereby further amended by striking out the word "chapters", in line 49, and inserting in place thereof the following word:- chapter.

(H) Said section 5G of said chapter 18, as so appearing, is hereby further amended by striking out, in lines 63 and 64, the words "and the division of medical assistance for use by the agencies".

(I) Section 22 of chapter 118E of the General Laws, as so appearing, is hereby amended by striking out, in line 3 and in line 9, the words "property damage,".

(J) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by inserting after the word "agency," in line 6, the following words:- risk retention group, captive insurer, third party administrator, self insured.

(K) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following 3 paragraphs:-
          When any claimant or the claimant's heirs, estate, or legal representative receives payment from a liability or workers' compensation insurer or any other third party as a result of a loss, the claimant or the claimant's heirs, estate, or legal representative shall repay to the executive office of health and human services the total of medical assistance benefits provided from monies allocated in the payment, settlement or compromise of claim or action, court award or judgment for medical expenses. The executive office retains the right to dispute any allocation for medical damages that results in less than full recovery of medical assistance benefits paid and to have a hearing before a court of competent jurisdiction on the allocation of damages before or after disbursement of payment by the third party. The executive office shall not be precluded from enforcing its recovery rights from any payment, settlement, compromise, judgment or award that excludes the cost of medical assistance benefits paid. Notwithstanding this section or any other general or special law to the contrary, where a claimant received medical assistance through a managed care organization, the executive office may recover the amount the managed care organization paid for medical services provided.
          When any claimant or the claimant's heirs, estate, or legal representative receives payment from a liability or workers' compensation insurer or any other third party, the claimant or the claimant's heirs, estate, or legal representative shall repay to the division of health care finance and policy the costs attributable to services provided to the claimant that were paid by the Health Safety Net Fund, established under section 36 of chapter 118G.
          When any claimant or the claimant's heirs, estate or legal representative receives payment from a liability or workers' compensation insurer or any other third party, the claimant or the claimant's heirs, estate, or legal representative shall repay to the department of transitional assistance the total of all financial assistance benefits provided by the department on or after the date of the loss to or on behalf of the claimant, the claimant's spouse or children, and any other individual the claimant is required by law to support; but if on the date of the loss the claimant was already eligible for financial assistance benefits, the claimant or the claimant's heirs, estate or legal representative shall repay only the increase in financial assistance that occurred as a result of the accident, illness, injury, or other incident.

(L) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by inserting after the word "such," in line 27, the following word:- recoverable.

(M) The third paragraph of said section 22 of said chapter 118E, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Notwithstanding the foregoing, the department of transitional assistance, the executive office, and the division of health care finance and policy may also perfect their right to a lien against any monies which may come into possession of the claimant's attorney by giving notice to that attorney.

(N) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-
          If the monies available for repayment are insufficient to satisfy in full any competing claims of the executive office, the division of health care finance and policy, and the department of transitional assistance, then each shall be entitled to its respective pro rata share of monies that are available.

(O) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out the sixth paragraph and inserting in place thereof the following paragraph:-
          A claimant, or, if represented by counsel, the claimant's attorney shall, within 10 calendar days, notify the executive office in writing upon engagement in informal recovery activity, including but not limited to making any insurance claim or sending a demand letter, and upon commencement of a civil action or other proceeding to establish the liability of any third party or to collect monies payable under accident, liability, or health insurance, workers' compensation, or from any other third party or source. No settlement, compromise, judgment or award or any recovery in any claim or action shall be made final without first giving the executive office, the division of health care finance and policy, and the department of transitional assistance such written notice and a reasonable opportunity to intervene or otherwise perfect their rights of recovery.

(P) The seventh paragraph of said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out the first sentence and inserting in place thereof the following sentence:- The commonwealth shall be subrogated to a claimant's entire cause of action or right to proceed against any third party and to a claimant's claim for monies to the extent of assistance or services provided under chapters 118, 118E, or 118G.

(Q) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by inserting after the word "assistance", in line 48, the following words:- or services.

(R) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out, in line 58, the word "division" and inserting in place thereof the following words:- executive office.

(S) Said section 22 of said chapter 118E, as so appearing, is hereby further amended by striking out the ninth paragraph and inserting in place thereof the following paragraph:-
          Notwithstanding any general or special law or rule or regulation to the contrary, all third parties shall provide information requested by the executive office, the department of transitional assistance and the division of health care finance and policy for use by those agencies for the purpose of recovering payments for public assistance benefits or services under this section, section 5G of chapter 18, and section 39 of chapter 118G.
 
 

Summary:
The section broadens the definition of "third party" that may be liable to pay for a claimant's loss. It also authorizes EOHHS to recover amounts paid by managed care organizations for medical assistance and imposes liens on third party payments to recover amounts paid for health care services from the Health Safety Net Trust Fund. Finally, it clarifies the ability of DTA to recover from liable third parties state funds paid to program clients that have experienced an injury or illness.