§ 259.3. Claims against moneys for which third-parties are liable as a result of a tort claim allocation of tort proceeds in actions filed on or after September 2, 2008—statement of policy.
(a) With respect to claims asserted by the MA Program against moneys owed by third parties as a result of tort claims asserted by a beneficiary of MA benefits, the Department will only recover from that portion of a tort recovery which represents payment for medical care by the third party. The beneficiary has the burden of informing the Department that its claim must be limited under this subsection and showing not all medical expenses paid by MA were recovered. For purposes of this section, the term ‘‘beneficiary’’ includes both present and former adult and minor recipients of MA benefits, and includes individuals receiving benefits through an MA managed care organization.
(b) If a beneficiary elects not to recover expenses for which medical assistance is provided under section 1409(b)(5) of the Public Welfare Code (62 P. S. § 1409(b)(5)) then:
(1) The Department will pursue its claim directly against the liable third-party or insurer if it is cost-effective to do so.
(2) The Department will not reduce its claim on account of attorney fees or costs incurred by the beneficiary regardless of any indirect benefit that the Department receives from the beneficiary’s prosecution of his claim.
(3) The beneficiary is prohibited from attempting to recover past or future medical expenses that will be paid by MA.
(4) Notice of settlement under section 1409(b)(5)(iv) of the Public Welfare Code shall be provided to the Department.
(5) The election not to recover expenses paid by MA may be revoked by the beneficiary only with the consent of the Department in writing.
(6) The beneficiary shall disclose to the liable third party or insurer that the beneficiary has elected not to recover expenses paid by MA and that the third-party or insurer will remain liable to the Department on the claim.
(7) The beneficiary shall cooperate with the Department’s efforts to obtain payment of medical care from any liable third-party or insurer as a condition of eligibility for MA in accordance with § 259.5 (relating to cooperation in obtaining payment from third-parties—statement of policy)
(c) A beneficiary may not settle or release the Department’s claims against third parties or insurers without the Department’s consent.
(d) The Department may impose a $5,000 civil money penalty for a violation of the notice requirements of section 1409(b)(5) of the Public Welfare Code or the distribution requirements of section 1409(b)(9) of the Public Welfare Code. A separate penalty may be imposed for each violation of the law. In determining whether to assess a civil money penalty against a third party or insurer for violating the statutory requirements, the Department will deem a third party or insurer to have information indicating that a beneficiary received MA if the beneficiary’s MA status is shown in records received by the third party or insurer.
(e) The Department will not impose or pursue liability under section 1409(b)(9) of the Public Welfare Code against a third party or insurer for the distribution of settlement proceeds on a claim by a beneficiary if an insurer or third-party has complied with one or more of the following requirements:
(1) The insurer resolves the Department’s claim with the Department and makes direct payment to the Department.
(2) The insurer or third party requires the beneficiary to satisfy the Department’s claim and makes the Department a payee on the settlement draft so that the Department’s endorsement is required to negotiate the draft.
(3) The insurer obtains a statement from the Division of Third-Party Liability that the Department has no claim against the settlement.
(f) Notices to the Department under sections 1409 and 1409.1 of the Public Welfare Code (62 P. S. § § 1409 and 1409.1) must be in writing and sent by certified or registered mail to the Division of Third-Party Liability, Department of Human Services, P. O. Box 8486, Harrisburg, PA 17105 and include the following information:
(1) The name of the beneficiary.
(2) The beneficiary’s MA identification number, if known.
(3) The beneficiary’s date of birth.
(4) The name of the beneficiary’s attorney, if applicable.
(5) The insurance carriers and claim numbers, if applicable.
(6) The date and specific injuries giving rise to the claim.
(7) The court and docket number in which the claim is pending.
(8) The filing date of the lawsuit or claim.
(9) The close of discovery date.
(g) A notice of election to exclude medical expenses paid by MA from a claim that is made within 30 days of filing the complaint must contain a copy of the complaint. A notice of election to exclude medical expenses paid by MA from a claim that is made more than 30 days after the filing of the complaint must contain a copy of the complaint and the docket entries in the case.
(h) A notice of election to exclude medical expenses paid by MA is not reasonable if it is given after the close of discovery in a case, or in the event of a settlement prior to the close of discovery, it is given less than 30 days prior to the date the settlement agreement is fully executed.
(i) If a court does not adjudicate the amount of the Department’s claim against a settlement, the Bureau of Hearings and Appeals has jurisdiction to hear and determine an appeal by a beneficiary contesting the amount of the Department’s claim.
Source The provisions of this § 259.3 adopted October 31, 2008, effective November 1, 2008, 38 Pa. Code 5970.
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