House Bill 1176

AN ACT TO AMEND SECTION 43-13-125, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MEDICAID RECIPIENTS OR THEIR LEGAL REPRESENTATIVES MAY RECOVER THE ACTUAL AMOUNT OF MEDICAID PAYMENTS MADE BY THE DIVISION OF MEDICAID ON BEHALF OF THE RECIPIENT AS AN ELEMENT OF DAMAGES IN ANY LEGAL ACTION AGAINST A THIRD PARTY; TO LIMIT THE AMOUNT OF RECOVERY FOR MEDICAL DAMAGES IN ANY SUCH ACTION TO THE ACTUAL AMOUNT OF MEDICAID PAYMENTS MADE; TO AMEND SECTION 43-13-305, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 43-13-125, Mississippi Code of 1972, is amended as follows:

43-13-125. (1) If Medicaid is provided to a recipient under this article for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the division shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery that the recipient may have against any such person, firm or corporation to the extent of the actual amount of Medicaid payments made by the division on behalf of the recipient. The recipient shall execute and deliver instruments and papers to do whatever is necessary to secure those rights and shall do nothing after Medicaid is provided to prejudice the subrogation rights of the division. Court orders or agreements for reimbursement of the actual amount of Medicaid payments made by the division shall direct those payments to the Division of Medicaid, which shall be authorized to endorse any and all, including, but not limited to, multi-payee checks, drafts, money orders, or other negotiable instruments representing Medicaid payment recoveries that are received. In accordance with Section 43-13-305, endorsement of multi-payee checks, drafts, money orders or other negotiable instruments by the Division of Medicaid shall be deemed endorsed by the recipient.

The division, with the approval of the Governor, may compromise or settle any such claim and execute a release of any claim it has by virtue of this section.

(2) The acceptance of Medicaid under this article or the making of a claim under this article shall not affect the right of a recipient or his legal representative to recover the actual amount of Medicaid payments made by the division on behalf of the recipient as an element of * * * damages in any action at law, but shall limit that recovery for medical damages to that amount;however, a copy of the pleadings shall be certified to the division at the time of the institution of suit, and proof of that notice shall be filed of record in that action. The division may, at any time before the trial on the facts, join in the action or may intervene in that action. Any amount recovered by a recipient or his legal representative shall be applied as follows:

(a) The reasonable costs of the collection, including attorney's fees, as approved and allowed by the court in which the action is pending, or in case of settlement without suit, by the legal representative of the division;

(b) The actual amount of Medicaid payments made by the division on behalf of the recipient; or such pro rata amount as may be arrived at by the legal representative of the division and the recipient's attorney, or as set by the court having jurisdiction; and

(3) No compromise of any claim by the recipient or his legal representative shall be binding upon or affect the rights of the division against the third party unless the division, with the approval of the Governor, has entered into the compromise. Any compromise effected by the recipient or his legal representative with the third party in the absence of advance notification to and approved by the division shall constitute conclusive evidence of the liability of the third party, and the division, in litigating its claim against the third party, shall be required only to prove the amount and correctness of its claim relating to such injury, disease or sickness. If the recipient or his legal representative fails to notify the division of the institution of legal proceedings against a third party for which the division has a cause of action, the facts relating to negligence and the liability of the third party, if judgment is rendered for the recipient, shall constitute conclusive evidence of liability in a later action maintained by the division, and only the amount and correctness of the division's claim relating to injuries, disease or sickness shall be tried before the court. The division shall be authorized in bringing that action against the third party and his insurer jointly or against the insurer alone.

(4) Nothing in this section shall be construed to diminish or otherwise restrict the subrogation rights of the Division of Medicaid against a third party for medical assistance provided by the Division of Medicaid to the recipient as a result of injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against such a third party.

(5) Any amounts recovered by the division under this section shall, by the division, be placed to the credit of the funds appropriated for benefits under this article proportionate to the amounts provided by the state and federal governments respectively.

SECTION 2. Section 43-13-305, Mississippi Code of 1972, is amended as follows:

43-13-305. (1) By accepting Medicaid from the Division of Medicaid in the Office of the Governor, the recipient shall, to the extent of the actual amount of Medicaid payments made by the Division of Medicaid, be deemed to have made an assignment to the Division of Medicaid of any and all rights and interests in any third-party benefits, hospitalization or indemnity contract or any cause of action, past, present or future, against any person, firm or corporation for the actual amount of Medicaid payments made by the Division of Medicaid for injuries, disease or sickness caused or suffered under circumstances creating a cause of action in favor of the recipient against any such person, firm or corporation as set out in Section 43-13-125. The recipient shall be deemed, without the necessity of signing any document, to have appointed the Division of Medicaid as his or her true and lawful attorney-in-fact in his or her name, place and stead in collecting any and all amounts due and owing for medical expenses paid by the Division of Medicaid against such person, firm or corporation.

(2) Whenever a provider of medical services or the Division of Medicaid submits claims to an insurer on behalf of a Medicaid recipient for whom an assignment of rights has been received, or whose rights have been assigned by the operation of law, the insurer must respond within sixty (60) days of receipt of a claim by forwarding payment or issuing a notice of denial directly to the submitter of the claim. The failure of the insuring entity to comply with the provisions of this section shall subject the insuring entity to recourse by the Division of Medicaid in accordance with the provision of Section 43-13-315. The Division of Medicaid shall be authorized to endorse any and all, including, but not limited to, multi-payee checks, drafts, money orders or other negotiable instruments representing Medicaid payment recoveries that are received by the Division of Medicaid.

(3) Court orders or agreements for medical support shall direct those payments to the Division of Medicaid, which shall be authorized to endorse any and all checks, drafts, money orders or other negotiable instruments representing medical support payments that are received. Any designated medical support funds received by the State Department of Human Services or through its local county departments shall be paid over to the Division of Medicaid. When medical support for a Medicaid recipient is available through an absent parent or custodial parent, the insuring entity shall direct the medical support payment(s) to the provider of medical services or to the Division of Medicaid.

SECTION 3. This act shall take effect and be in force from and after July 1, 2004.