CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Goode offered the following:

12

13         Amendment (with title amendment) 

14  Remove from the bill:  Everything after the enacting clause

15

16  and insert in lieu thereof:

17         Section 1.  Section 409.910, Florida Statutes, is

18  amended to read:

19         409.910  Responsibility for payments on behalf of

20  Medicaid-eligible persons when other parties are liable.--

21         (1)  It is the intent of the Legislature that Medicaid

22  be the payor of last resort for medically necessary goods and

23  services furnished to Medicaid recipients. All other sources

24  of payment for medical care are primary to medical assistance

25  provided by Medicaid. If benefits of a liable third party are

26  discovered or become available after medical assistance has

27  been provided by Medicaid, it is the intent of the Legislature

28  that Medicaid be repaid in full and prior to any other person,

29  program, or entity. Medicaid is to be repaid in full from, and

30  to the extent of, any third-party benefits, regardless of

31  whether a recipient is made whole or other creditors paid.

                                  1

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  Principles of common law and equity as to assignment, lien,

 2  and subrogation, comparative negligence, assumption of risk,

 3  and all other affirmative defenses normally available to a

 4  liable third party, are to be abrogated to the extent

 5  necessary to ensure full recovery by Medicaid from third-party

 6  resources.; such principles shall apply to a recipient's right

 7  to recovery against any third party, but shall not act to

 8  reduce the recovery of the agency pursuant to this section.

 9  The concept of joint and several liability applies to any

10  recovery on the part of the agency. It is intended that if the

11  resources of a liable third party become available at any

12  time, the public treasury should not bear the burden of

13  medical assistance to the extent of such resources. Common-law

14  theories of recovery shall be liberally construed to

15  accomplish this intent.

16         (2)  This section may be cited as the "Medicaid

17  Third-Party Liability Act."

18         (3)  Third-party benefits for medical services shall be

19  primary to medical assistance provided by Medicaid.

20         (4)  After the department has provided medical

21  assistance under the Medicaid program, it shall seek recovery

22  of reimbursement from third-party benefits to the limit of

23  legal liability and for the full amount of third-party

24  benefits, but not in excess of the amount of medical

25  assistance paid by Medicaid, as to:

26         (a)  Claims for which the department has a waiver

27  pursuant to federal law; or

28         (b)  Situations in which the department learns of the

29  existence of a liable third party is liable and the liability

30  or in which third-party benefits available are discovered

31  either before or become available after medical assistance has

                                  2

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  been provided by Medicaid.

 2         (5)  An applicant, recipient, or legal representative

 3  shall inform the department of any rights the applicant or

 4  recipient has to third-party benefits and shall inform the

 5  department of the name and address of any person that is or

 6  may be liable to provide third-party benefits. When the

 7  department provides, pays for, or becomes liable for medical

 8  services provided by a hospital, the recipient receiving such

 9  medical services or his or her legal representative shall also

10  provide the information as to third-party benefits, as defined

11  in this section, to the hospital, which shall provide notice

12  thereof to the department in a manner specified by the

13  department.

14         (6)  When the department provides, pays for, or becomes

15  liable for medical care under the Medicaid program, it has the

16  following rights, as to which the department may assert

17  independent principles of law, which shall nevertheless be

18  construed together to provide the greatest recovery from

19  third-party benefits:

20         (a)  The agency has a cause of action against a liable

21  third party to recover the full amount of medical assistance

22  provided by Medicaid, and such cause of action is independent

23  of any rights or causes of action of the recipient.

24         (a)(b)  The department is automatically subrogated to

25  any rights that an applicant, recipient, or legal

26  representative has to any third-party benefit for the full

27  amount of medical assistance provided by Medicaid. Recovery

28  pursuant to the subrogation rights created hereby shall not be

29  reduced, prorated, or applied to only a portion of a judgment,

30  award, or settlement, but is to provide full recovery by the

31  department from any and all third-party benefits. Equities of

                                  3

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  a recipient, his or her legal representative, a recipient's

 2  creditors, or health care providers shall not defeat, reduce,

 3  or prorate recovery by the department as to its subrogation

 4  rights granted under this paragraph.

 5         (b)(c)  By applying for or accepting medical

 6  assistance, an applicant, recipient, or legal representative

 7  automatically assigns to the department any right, title, and

 8  interest such person has to any third-party benefit, excluding

 9  any Medicare benefit to the extent required to be excluded by

10  federal law.

11         1.  The assignment granted under this paragraph is

12  absolute, and vests legal and equitable title to any such

13  right in the department, but not in excess of the amount of

14  medical assistance provided by the department.

15         2.  The department is a bona fide assignee for value in

16  the assigned right, title, or interest, and takes vested legal

17  and equitable title free and clear of latent equities in a

18  third person. Equities of a recipient, the recipient's legal

19  representative, his or her creditors, or health care providers

20  shall not defeat or reduce recovery by the department as to

21  the assignment granted under this paragraph.

22         3.  By accepting medical assistance, the recipient

23  grants to the department the limited power of attorney to act

24  in his or her name, place, and stead to perform specific acts

25  with regard to third-party benefits, the recipient's assent

26  being deemed to have been given, including:

27         a.  Endorsing any draft, check, money order, or other

28  negotiable instrument representing third-party benefits that

29  are received on behalf of the recipient as a third-party

30  benefit.

31         b.  Compromising claims to the extent of the rights

                                  4

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  assigned, provided that the recipient is not otherwise

 2  represented by an attorney as to the claim.

 3         (c)(d)  The department is entitled to, and has, an

 4  automatic lien for the full amount of medical assistance

 5  provided by Medicaid to or on behalf of the recipient for

 6  medical care furnished as a result of any covered injury or

 7  illness for which a third party is or may be liable, upon the

 8  collateral, as defined in s. 409.901.

 9         1.  The lien attaches automatically when a recipient

10  first receives treatment for which the department may be

11  obligated to provide medical assistance under the Medicaid

12  program. The lien is perfected automatically at the time of

13  attachment.

14         2.  The department is authorized to file a verified

15  claim of lien. The claim of lien shall be signed by an

16  authorized employee of the department, and shall be verified

17  as to the employee's knowledge and belief. The claim of lien

18  may be filed and recorded with the clerk of the circuit court

19  in the recipient's last known county of residence or in any

20  county deemed appropriate by the department. The claim of

21  lien, to the extent known by the department, shall contain:

22         a.  The name and last known address of the person to

23  whom medical care was furnished.

24         b.  The date of injury.

25         c.  The period for which medical assistance was

26  provided.

27         d.  The amount of medical assistance provided or paid,

28  or for which Medicaid is otherwise liable.

29         e.  The names and addresses of all persons claimed by

30  the recipient to be liable for the covered injuries or

31  illness.

                                  5

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1         3.  The filing of the claim of lien pursuant to this

 2  section shall be notice thereof to all persons.

 3         4.  If the claim of lien is filed within 1 year after

 4  the later of the date when the last item of medical care

 5  relative to a specific covered injury or illness was paid, or

 6  the date of discovery by the department of the liability of

 7  any third party, or the date of discovery of a cause of action

 8  against a third party brought by a recipient or his or her

 9  legal representative, record notice shall relate back to the

10  time of attachment of the lien.

11         5.  If the claim of lien is filed after 1 year after

12  the later of the events specified in subparagraph 4., notice

13  shall be effective as of the date of filing.

14         6.  Only one claim of lien need be filed to provide

15  notice as set forth in this paragraph and shall provide

16  sufficient notice as to any additional or after-paid amount of

17  medical assistance provided by Medicaid for any specific

18  covered injury or illness. The department may, in its

19  discretion, file additional, amended, or substitute claims of

20  lien at any time after the initial filing, until the

21  department has been repaid the full amount of medical

22  assistance provided by Medicaid or otherwise has released the

23  liable parties and recipient.

24         7.  No release or satisfaction of any cause of action,

25  suit, claim, counterclaim, demand, judgment, settlement, or

26  settlement agreement shall be valid or effectual as against a

27  lien created under this paragraph, unless the department joins

28  in the release or satisfaction or executes a release of the

29  lien. An acceptance of a release or satisfaction of any cause

30  of action, suit, claim, counterclaim, demand, or judgment and

31  any settlement of any of the foregoing in the absence of a

                                  6

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  release or satisfaction of a lien created under this paragraph

 2  shall prima facie constitute an impairment of the lien, and

 3  the department is entitled to recover damages on account of

 4  such impairment. In an action on account of impairment of a

 5  lien, the department may recover from the person accepting the

 6  release or satisfaction or making the settlement the full

 7  amount of medical assistance provided by Medicaid. Nothing in

 8  this section shall be construed as creating a lien or other

 9  obligation on the part of an insurer which in good faith has

10  paid a claim pursuant to its contract without knowledge or

11  actual notice that the department has provided medical

12  assistance for the recipient related to a particular covered

13  injury or illness. However, notice or knowledge that an

14  insured is, or has been a Medicaid recipient within 1 year

15  from the date of service for which a claim is being paid

16  creates a duty to inquire on the part of the insurer as to any

17  injury or illness for which the insurer intends or is

18  otherwise required to pay benefits.

19         8.  The lack of a properly filed claim of lien shall

20  not affect the department's assignment or subrogation rights

21  provided in this subsection, nor shall it affect the existence

22  of the lien, but only the effective date of notice as provided

23  in subparagraph 5.

24         9.  The lien created by this paragraph is a first lien

25  and superior to the liens and charges of any provider, and

26  shall exist for a period of 7 years, if recorded, after the

27  date of recording; and shall exist for a period of 7 years

28  after the date of attachment, if not recorded. If recorded,

29  the lien may be extended for one additional period of 7 years

30  by rerecording the claim of lien within the 90-day period

31  preceding the expiration of the lien.

                                  7

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1         10.  The clerk of the circuit court for each county in

 2  the state shall endorse on a claim of lien filed under this

 3  paragraph the date and hour of filing and shall record the

 4  claim of lien in the official records of the county as for

 5  other records received for filing. The clerk shall receive as

 6  his or her fee for filing and recording any claim of lien or

 7  release of lien under this paragraph the total sum of $2. Any

 8  fee required to be paid by the department shall not be

 9  required to be paid in advance of filing and recording, but

10  may be billed to the department after filing and recording of

11  the claim of lien or release of lien.

12         11.  After satisfaction of any lien recorded under this

13  paragraph, the department shall, within 60 days after

14  satisfaction, either file with the appropriate clerk of the

15  circuit court or mail to any appropriate party, or counsel

16  representing such party, if represented, a satisfaction of

17  lien in a form acceptable for filing in Florida.

18         (7)  The department shall recover the full amount of

19  all medical assistance provided by Medicaid on behalf of the

20  recipient to the full extent of third-party benefits.

21         (a)  Recovery of such benefits shall be collected

22  directly from:

23         1.  Any third party;

24         2.  The recipient or legal representative, if he or she

25  has received third-party benefits;

26         3.  The provider of a recipient's medical services if

27  third-party benefits have been recovered by the provider;

28  notwithstanding any provision of this section, to the

29  contrary, however, no provider shall be required to refund or

30  pay to the department any amount in excess of the actual

31  third-party benefits received by the provider from a

                                  8

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  third-party payor for medical services provided to the

 2  recipient; or

 3         4.  Any person who has received the third-party

 4  benefits.

 5         (b)  Upon receipt of any recovery or other collection

 6  pursuant to this section, the department shall distribute the

 7  amount collected as follows:

 8         1.  To itself, an amount equal to the state Medicaid

 9  expenditures for the recipient plus any incentive payment made

10  in accordance with paragraph (14)(a).

11         2.  To the Federal Government, the federal share of the

12  state Medicaid expenditures minus any incentive payment made

13  in accordance with paragraph (14)(a) and federal law, and

14  minus any other amount permitted by federal law to be

15  deducted.

16         3.  To the recipient, after deducting any known amounts

17  owed to the department for any related medical assistance or

18  to health care providers, any remaining amount. This amount

19  shall be treated as income or resources in determining

20  eligibility for Medicaid.

21         (8)  The department shall require an applicant or

22  recipient, or the legal representative thereof, to cooperate

23  in the recovery by the department of third-party benefits of a

24  recipient and in establishing paternity and support of a

25  recipient child born out of wedlock. As a minimal standard of

26  cooperation, the recipient or person able to legally assign a

27  recipient's rights shall:

28         (a)  Appear at an office designated by the department

29  to provide relevant information or evidence.

30         (b)  Appear as a witness at a court or other

31  proceeding.

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1         (c)  Provide information, or attest to lack of

 2  information, under penalty of perjury.

 3         (d)  Pay to the department any third-party benefit

 4  received.

 5         (e)  Take any additional steps to assist in

 6  establishing paternity or securing third-party benefits, or

 7  both.

 8         (f)  Paragraphs (a)-(e) notwithstanding, the department

 9  shall have the discretion to waive, in writing, the

10  requirement of cooperation for good cause shown and as

11  required by federal law.

12         (9)  In the event that medical assistance has been

13  provided by Medicaid to more than one recipient, and the

14  agency elects to seek recovery from liable third parties due

15  to actions by the third parties or circumstances which involve

16  common issues of fact or law, the agency may bring an action

17  to recover sums paid to all such recipients in one proceeding.

18  In any action brought under this subsection, the evidence code

19  shall be liberally construed regarding the issues of causation

20  and of aggregate damages. The issue of causation and damages

21  in any such action may be proven by use of statistical

22  analysis.

23         (a)  In any action under this subsection wherein the

24  number of recipients for which medical assistance has been

25  provided by Medicaid is so large as to cause it to be

26  impracticable to join or identify each claim, the agency shall

27  not be required to so identify the individual recipients for

28  which payment has been made, but rather can proceed to seek

29  recovery based upon payments made on behalf of an entire class

30  of recipients.

31         (b)  In any action brought pursuant to this subsection

                                  10

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  wherein a third party is liable due to its manufacture, sale,

 2  or distribution of a product, the agency shall be allowed to

 3  proceed under a market share theory, provided that the

 4  products involved are substantially interchangeable among

 5  brands, and that substantially similar factual or legal issues

 6  would be involved in seeking recovery against each liable

 7  third party individually.

 8         (9)(10)  The department shall deny or terminate

 9  eligibility for any applicant or recipient who refuses to

10  cooperate as required in subsection (8), unless cooperation

11  has been waived in writing by the department as provided in

12  paragraph (8)(f). However, any denial or termination of

13  eligibility shall not reduce medical assistance otherwise

14  payable by the department to a provider for medical care

15  provided to a recipient prior to denial or termination of

16  eligibility.

17         (10)(11)  An applicant or recipient shall be deemed to

18  have provided to the department the authority to obtain and

19  release medical information and other records with respect to

20  such medical care, for the sole purpose of obtaining

21  reimbursement for medical assistance provided by Medicaid.

22         (11)(12)  The department may, as a matter of right, in

23  order to enforce its rights under this section, institute,

24  intervene in, or join any legal or administrative proceeding

25  in its own name in one or more of the following capacities:

26  individually, as subrogee of the recipient, as assignee of the

27  recipient, or as lienholder of the collateral.

28         (a)  If either the recipient, or his or her legal

29  representative, or the department brings an action against a

30  third party, the recipient, or the recipient's legal

31  representative, or the department, or their attorneys, shall,

                                  11

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  within 30 days after filing the action, provide to the other

 2  written notice, by personal delivery or registered mail, of

 3  the action, the name of the court in which the case is

 4  brought, the case number of such action, and a copy of the

 5  pleadings. If an action is brought by either the department,

 6  or the recipient or the recipient's legal representative, the

 7  other may, at any time before trial on the merits, become a

 8  party to, or shall consolidate his or her action with the

 9  other if brought independently. Unless waived by the other,

10  the recipient, or his or her legal representative, or the

11  department shall provide notice to the other of the intent to

12  dismiss at least 21 days prior to voluntary dismissal of an

13  action against a third party. Notice to the department shall

14  be sent to an address set forth by rule. Notice to the

15  recipient or his or her legal representative, if represented

16  by an attorney, shall be sent to the attorney, and, if not

17  represented, then to the last known address of the recipient

18  or his or her legal representative. The provisions of this

19  subsection shall not apply to any actions brought pursuant to

20  subsection (9), and in any such action, no notice to

21  recipients is required, and the recipients shall have no right

22  to become a party to any action brought under such subsection.

23         (b)  An action by the department to recover damages in

24  tort under this subsection, which action is derivative of the

25  rights of the recipient or his or her legal representative,

26  shall not constitute a waiver of sovereign immunity pursuant

27  to s. 768.14.

28         (c)  In the event of judgment, award, or settlement in

29  a claim or action against a third party, the court shall order

30  the segregation of an amount sufficient to repay the

31  department's expenditures for medical assistance, plus any

                                  12

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  other amounts permitted under this section, and shall order

 2  such amounts paid directly to the department.

 3         (d)  No judgment, award, or settlement in any action by

 4  a recipient or his or her legal representative to recover

 5  damages for injuries or other third-party benefits, when the

 6  department has an interest, shall be satisfied without first

 7  giving the department notice and a reasonable opportunity to

 8  file and satisfy its lien, and satisfy its assignment and

 9  subrogation rights or proceed with any action as permitted in

10  this section.

11         (e)  Except as otherwise provided in this section,

12  notwithstanding any other provision of law, the entire amount

13  of any settlement of the recipient's action or claim involving

14  third-party benefits, with or without suit, is subject to the

15  department's claims for reimbursement of the amount of medical

16  assistance provided and any lien pursuant thereto.

17         (f)  Notwithstanding any provision in this section to

18  the contrary, in the event of an action in tort against a

19  third party in which the recipient or his or her legal

20  representative is a party and in which the amount of any

21  judgment, award, or settlement from third-party benefits,

22  excluding medical coverage as defined in subparagraph 4.,

23  after reasonable costs and expenses of litigation, is an

24  amount equal to or less than 200 percent of the amount of

25  medical assistance provided by Medicaid less any medical

26  coverage paid or payable to the department, then distribution

27  of the amount recovered shall be as follows:

28         1.  Any fee for services of an attorney retained by the

29  recipient or his or her legal representative shall not exceed

30  an amount equal to 25 percent of the recovery, after

31  reasonable costs and expenses of litigation, from the

                                  13

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  judgment, award, or settlement.

 2         2.  After attorney's fees, two-thirds of the remaining

 3  recovery shall be designated for past medical care and paid to

 4  the department for medical assistance provided by Medicaid.

 5         3.  The remaining amount from the recovery shall be

 6  paid to the recipient.

 7         4.  For purposes of this paragraph, "medical coverage"

 8  means any benefits under health insurance, a health

 9  maintenance organization, a preferred provider arrangement, or

10  a prepaid health clinic, and the portion of benefits

11  designated for medical payments under coverage for workers'

12  compensation, personal injury protection, and casualty.

13         (g)  In the event that the recipient, his or her legal

14  representative, or the recipient's estate brings an action

15  against a third party, notice of institution of legal

16  proceedings, notice of settlement, and all other notices

17  required by this section or by rule shall be given to the

18  department, in Tallahassee, in a manner set forth by rule. All

19  such notices shall be given by the attorney retained to assert

20  the recipient's or legal representative's claim, or, if no

21  attorney is retained, by the recipient, the recipient's legal

22  representative, or his or her estate.

23         (h)  Except as otherwise provided in this section,

24  actions to enforce the rights of the department under this

25  section shall be commenced within 5 years after the date a

26  cause of action accrues, with the period running from the

27  later of the date of discovery by the department of a case

28  filed by a recipient or his or her legal representative, or of

29  discovery of any judgment, award, or settlement contemplated

30  in this section, or of discovery of facts giving rise to a

31  cause of action under this section the provision of medical

                                  14

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  assistance to a recipient. Each item of expense provided by

 2  the agency shall be considered to constitute a separate cause

 3  of action for purposes of this subsection. The defense of

 4  statute of repose shall not apply to any action brought under

 5  this section by the agency. Nothing in this paragraph affects

 6  or prevents a proceeding to enforce a lien during the

 7  existence of the lien as set forth in subparagraph (6)(c)9.

 8         (i)  Upon the death of a recipient, and within the time

 9  prescribed by ss. 733.702 and 733.710, the department, in

10  addition to any other available remedy, may file a claim

11  against the estate of the recipient for the total amount of

12  medical assistance provided by Medicaid for the benefit of the

13  recipient. Claims so filed shall take priority as class 3

14  claims as provided by s. 733.707(1)(c). The filing of a claim

15  pursuant to this paragraph shall neither reduce nor diminish

16  the general claims of the department under s. 414.28, except

17  that the department may not receive double recovery for the

18  same expenditure. Claims under this paragraph shall be

19  superior to those under s. 414.28. The death of the recipient

20  shall neither extinguish nor diminish any right of the

21  department to recover third-party benefits from a third party

22  or provider. Nothing in this paragraph affects or prevents a

23  proceeding to enforce a lien created pursuant to this section

24  or a proceeding to set aside a fraudulent conveyance as

25  defined in subsection (16).

26         (12)(13)  No action taken by the department shall

27  operate to deny the recipient's recovery of that portion of

28  benefits not assigned or subrogated to the department, or not

29  secured by the department's lien. The department's rights of

30  recovery created by this section, however, shall not be

31  limited to some portion of recovery from a judgment, award, or

                                  15

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  settlement. Only the following benefits are not subject to the

 2  rights of the department: benefits not related in any way to a

 3  covered injury or illness; proceeds of life insurance coverage

 4  on the recipient; proceeds of insurance coverage, such as

 5  coverage for property damage, which by its terms and

 6  provisions cannot be construed to cover personal injury,

 7  death, or a covered injury or illness; proceeds of disability

 8  coverage for lost income; and recovery in excess of the amount

 9  of medical benefits provided by Medicaid after repayment in

10  full to the department.

11         (13)(14)  No action of the recipient shall prejudice

12  the rights of the department under this section. No

13  settlement, agreement, consent decree, trust agreement,

14  annuity contract, pledge, security arrangement, or any other

15  device, hereafter collectively referred to in this subsection

16  as a "settlement agreement," entered into or consented to by

17  the recipient or his or her legal representative shall impair

18  the department's rights. However, in a structured settlement,

19  no settlement agreement by the parties shall be effective or

20  binding against the department for benefits accrued without

21  the express written consent of the department or an

22  appropriate order of a court having personal jurisdiction over

23  the department.

24         (14)(15)  The department is authorized to enter into

25  agreements to enforce or collect medical support and other

26  third-party benefits.

27         (a)  If a cooperative agreement is entered into with

28  any agency, program, or subdivision of the state, or any

29  agency, program, or legal entity of or operated by a

30  subdivision of the state, or with any other state, the

31  department is authorized to make an incentive payment of up to

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  15 percent of the amount actually collected and reimbursed to

 2  the department, to the extent of medical assistance paid by

 3  Medicaid. Such incentive payment is to be deducted from the

 4  federal share of that amount, to the extent authorized by

 5  federal law. The department may pay such person an additional

 6  percentage of the amount actually collected and reimbursed to

 7  the department as a result of the efforts of the person, but

 8  no more than a maximum percentage established by the

 9  department. In no case shall the percentage exceed the lesser

10  of a percentage determined to be commercially reasonable or 15

11  percent, in addition to the 15-percent incentive payment, of

12  the amount actually collected and reimbursed to the department

13  as a result of the efforts of the person under contract.

14         (b)  If an agreement to enforce or collect third-party

15  benefits is entered into by the department with any person

16  other than those described in paragraph (a), including any

17  attorney retained by the department who is not an employee or

18  agent of any person named in paragraph (a), then the

19  department may pay such person a percentage of the amount

20  actually collected and reimbursed to the department as a

21  result of the efforts of the person, to the extent of medical

22  assistance paid by Medicaid. In no case shall the percentage

23  exceed a maximum established by the department, which shall

24  not exceed the lesser of a percentage determined to be

25  commercially reasonable or 30 percent of the amount actually

26  collected and reimbursed to the department as a result of the

27  efforts of the person under contract. For the purposes of this

28  paragraph, an attorney's fee paid, payable, or negotiated, may

29  not exceed an amount calculated in accordance with the

30  lodestar process approved by the Florida Supreme Court, which

31  attorney's fee shall be set by the determination of the number

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  of hours reasonably expended on the matter and the reasonable

 2  hourly rate for the services provided by the private attorney.

 3  In contingent fee matters, the lodestar figure calculated may

 4  include a contingency risk multiplier not greater than 2.

 5         (c)  An agreement pursuant to this subsection may

 6  permit reasonable litigation costs or expenses to be paid from

 7  the department's recovery to a person under contract with the

 8  department.

 9         (d)  Contingency fees and costs incurred in recovery

10  pursuant to an agreement under this subsection may, for

11  purposes of determining state and federal share, be deemed to

12  be administrative expenses of the state. To the extent

13  permitted by federal law, such administrative expenses shall

14  be shared with, or fully paid by, the Federal Government.

15         (15)(16)  Insurance and other third-party benefits may

16  not contain any term or provision which purports to limit or

17  exclude payment or provisions of benefits for an individual if

18  the individual is eligible for, or a recipient of, medical

19  assistance from Medicaid, and any such term or provision shall

20  be void as against public policy.

21         (16)(17)  Any transfer or encumbrance of any right,

22  title, or interest to which the department has a right

23  pursuant to this section, with the intent, likelihood, or

24  practical effect of defeating, hindering, or reducing recovery

25  by the department for reimbursement of medical assistance

26  provided by Medicaid, shall be deemed to be a fraudulent

27  conveyance, and such transfer or encumbrance shall be void and

28  of no effect against the claim of the department, unless the

29  transfer was for adequate consideration and the proceeds of

30  the transfer are reimbursed in full to the department, but not

31  in excess of the amount of medical assistance provided by

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  Medicaid.

 2         (17) (18)  A recipient or his or her legal

 3  representative or any person representing, or acting as agent

 4  for, a recipient or the recipient's legal representative, who

 5  has notice, excluding notice charged solely by reason of the

 6  recording of the lien pursuant to paragraph (6)(d), or who has

 7  actual knowledge of the department's rights to third-party

 8  benefits under this section, who receives any third-party

 9  benefit or proceeds therefrom for a covered illness or injury,

10  is required either to pay the department the full amount of

11  the third-party benefits, but not in excess of the total

12  medical assistance provided by Medicaid, or to place the full

13  amount of the third-party benefits in a trust account for the

14  benefit of the department pending judicial or administrative

15  determination of the department's right thereto. Proof that

16  any such person had notice or knowledge that the recipient had

17  received medical assistance from Medicaid, and that

18  third-party benefits or proceeds therefrom were in any way

19  related to a covered illness or injury for which Medicaid had

20  provided medical assistance, and that any such person

21  knowingly obtained possession or control of, or used,

22  third-party benefits or proceeds and failed either to pay the

23  department the full amount required by this section or to hold

24  the full amount of third-party benefits or proceeds in trust

25  pending judicial or administrative determination, unless

26  adequately explained, gives rise to an inference that such

27  person knowingly failed to credit the state or its agent for

28  payments received from social security, insurance, or other

29  sources, pursuant to s. 414.39(4)(b), and acted with the

30  intent set forth in s. 812.014(1).

31         (a)  In cases of suspected criminal violations of

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  fraudulent activity, the department may take any civil action

 2  permitted at law or equity to recover the greatest possible

 3  amount, including, without limitation, treble damages under

 4  ss. 772.11 and 812.035(7).

 5         (b)(a)  The department is authorized to investigate and

 6  to request appropriate officers or agencies of the state to

 7  investigate suspected criminal violations or fraudulent

 8  activity related to third-party benefits, including, without

 9  limitation, ss. 414.39 409.325 and 812.014. Such requests may

10  be directed, without limitation, to the Medicaid Fraud Control

11  Unit of the Office of the Attorney General, or to any state

12  attorney. Pursuant to s. 409.913, the Attorney General has

13  primary responsibility to investigate and control Medicaid

14  fraud.

15         (c)(b)  In carrying out duties and responsibilities

16  related to Medicaid fraud control, the department may subpoena

17  witnesses or materials within or outside the state and,

18  through any duly designated employee, administer oaths and

19  affirmations and collect evidence for possible use in either

20  civil or criminal judicial proceedings.

21         (d)(c)  All information obtained and documents prepared

22  pursuant to an investigation of a Medicaid recipient, the

23  recipient's legal representative, or any other person relating

24  to an allegation of recipient fraud or theft is confidential

25  and exempt from s. 119.07(1):

26         1.  Until such time as the department takes final

27  agency action;

28         2.  Until such time as the Department of Legal Affairs

29  Attorney General refers the case for criminal prosecution;

30         3.  Until such time as an indictment or criminal

31  information is filed by a state attorney in a criminal case;

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  or

 2         4.  At all times if otherwise protected by law.

 3         (19)  In cases of suspected criminal violations or

 4  fraudulent activity, on the part of any person including a

 5  liable third party, the department is authorized to take any

 6  civil action permitted at law or equity to recover the

 7  greatest possible amount, including without limitation, treble

 8  damages under s. 772.73. In any action in which the recipient

 9  has no right to intervene, or does not exercise his or her

10  right to intervene, any amounts recovered under this

11  subsection shall be the property of the agency, and the

12  recipient shall have no right or interest in such recovery.

13         (18)(20)  In recovering any payments in accordance with

14  this section, the department is authorized to make appropriate

15  settlements.

16         (19)(21)  Notwithstanding any provision in this section

17  to the contrary, the department shall not be required to seek

18  reimbursement from a liable third party on claims for which

19  the department determines that the amount it reasonably

20  expects to recover will be less than the cost of recovery, or

21  that recovery efforts will otherwise not be cost-effective.

22         (20)(22)  Entities providing health insurance as

23  defined in s. 624.603, and health maintenance organizations

24  and prepaid health clinics as defined in chapter 641, shall

25  provide such records and information as are necessary to

26  accomplish the purpose of this section, unless such

27  requirement results in an unreasonable burden.

28         (a)  The secretary of the department and the Insurance

29  Commissioner shall enter into a cooperative agreement for

30  requesting and obtaining information necessary to effect the

31  purpose and objective of this section.

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1         1.  The department shall request only that information

 2  necessary to determine whether health insurance as defined

 3  pursuant to s. 624.603, or those health services provided

 4  pursuant to chapter 641, could be, should be, or have been

 5  claimed and paid with respect to items of medical care and

 6  services furnished to any person eligible for services under

 7  this section.

 8         2.  All information obtained pursuant to subparagraph

 9  1. is confidential and exempt from s. 119.07(1).

10         3.  The cooperative agreement or rules adopted under

11  this subsection may include financial arrangements to

12  reimburse the reporting entities for reasonable costs or a

13  portion thereof incurred in furnishing the requested

14  information. Neither the cooperative agreement nor the rules

15  shall require the automation of manual processes to provide

16  the requested information.

17         (b)  The department and the Department of Insurance

18  jointly shall adopt rules for the development and

19  administration of the cooperative agreement. The rules shall

20  include the following:

21         1.  A method for identifying those entities subject to

22  furnishing information under the cooperative agreement.

23         2.  A method for furnishing requested information.

24         3.  Procedures for requesting exemption from the

25  cooperative agreement based on an unreasonable burden to the

26  reporting entity.

27         (21)(23)  The department is authorized to adopt rules

28  to implement the provisions of this section and federal

29  requirements.

30         Section 2.  Paragraph (a) of subsection (9) of section

31  624.424, Florida Statutes, is amended to read:

                                  22

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1         624.424  Annual statement and other information.--

 2         (9)(a)  Each authorized insurer shall, pursuant to s.

 3  409.910(20) s. 409.910(22), provide records and information to

 4  the Department of Health and Rehabilitative Services to

 5  identify potential insurance coverage for claims filed with

 6  that department and its fiscal agents for payment of medical

 7  services under the Medicaid program.

 8         Section 3.  This act shall take effect upon becoming a

 9  law and shall operate retroactively to July 1, 1994, except

10  that any action filed prior to March 1, 1998, any appeal of

11  such action, any matter related to such action, any

12  enforcement of the terms of a settlement agreement entered in

13  such action, or any action filed prior to March 1, 1998, in

14  which the parties have agreed to settle and the trial court

15  has approved the settlement agreement, whether or not the time

16  to appeal the approval of such settlement has expired, may

17  proceed under the law as it existed on the date of the filing

18  of such action, except that the amendments to Section

19  409.910(15), Florida Statutes, renumbered as Section

20  409.910(14), Florida Statutes, shall be applicable to such

21  action. If any settlement agreement entered in an action filed

22  prior to March 1, 1998, is overturned, canceled, or

23  terminated, or is altered in any material manner by subsequent

24  court order, such action may proceed under the law as it

25  existed on the date of the filing of such action, except that

26  the amendments to Section 409.910(15), Florida Statutes,

27  renumbered as Section 409.910(14), Florida Statutes, shall be

28  applicable to such action.

29

30

31

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                                                   HOUSE AMENDMENT

    hbd-31                                        Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3  remove from the title of the bill:  everything before the

 4  enacting clause

 5

 6  and insert in lieu thereof:

 7                      A bill to be entitled

 8         An act relating to Medicaid provider fraud;

 9         amending s. 409.910, F.S.; limiting the scope

10         of liability for which Medicaid benefits must

11         be repaid; limiting certain fees; amending s.

12         624.424, F.S.; conforming a cross-reference;

13         barring certain civil actions; providing for

14         retroactive application; providing an effective

15         date.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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