House Bill 3077e2
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 A bill to be entitled
2 An act relating to Medicaid third-party
3 liability; amending s. 409.910, F.S.; limiting
4 the scope of liability for which Medicaid
5 benefits must be repaid; amending s. 624.424,
6 F.S.; conforming a cross-reference and
7 correcting an agency reference; providing for
8 retroactive application; providing a savings
9 clause for certain actions; providing an
10 effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 409.910, Florida Statutes, is
15 amended to read:
16 409.910 Responsibility for payments on behalf of
17 Medicaid-eligible persons when other parties are liable.--
18 (1) It is the intent of the Legislature that Medicaid
19 be the payor of last resort for medically necessary goods and
20 services furnished to Medicaid recipients. All other sources
21 of payment for medical care are primary to medical assistance
22 provided by Medicaid. If benefits of a liable third party are
23 discovered or become available after medical assistance has
24 been provided by Medicaid, it is the intent of the Legislature
25 that Medicaid be repaid in full and prior to any other person,
26 program, or entity. Medicaid is to be repaid in full from, and
27 to the extent of, any third-party benefits, regardless of
28 whether a recipient is made whole or other creditors paid.
29 Principles of common law and equity as to assignment, lien,
30 and subrogation, comparative negligence, assumption of risk,
31 and all other affirmative defenses normally available to a
1
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 liable third party, are to be abrogated to the extent
2 necessary to ensure full recovery by Medicaid from third-party
3 resources; such principles shall apply to a recipient's right
4 to recovery against any third party, but shall not act to
5 reduce the recovery of the agency pursuant to this section.
6 The concept of joint and several liability applies to any
7 recovery on the part of the agency. It is intended that if the
8 resources of a liable third party become available at any
9 time, the public treasury should not bear the burden of
10 medical assistance to the extent of such resources. Common-law
11 theories of recovery shall be liberally construed to
12 accomplish this intent.
13 (2) This section may be cited as the "Medicaid
14 Third-Party Liability Act."
15 (3) Third-party benefits for medical services shall be
16 primary to medical assistance provided by Medicaid.
17 (4) After the department has provided medical
18 assistance under the Medicaid program, it shall seek recovery
19 of reimbursement from third-party benefits to the limit of
20 legal liability and for the full amount of third-party
21 benefits, but not in excess of the amount of medical
22 assistance paid by Medicaid, as to:
23 (a) Claims for which the department has a waiver
24 pursuant to federal law; or
25 (b) Situations in which the department learns of the
26 existence of a liable third party is liable and the liability
27 or in which third-party benefits available are discovered
28 either before or become available after medical assistance has
29 been provided by Medicaid.
30 (5) An applicant, recipient, or legal representative
31 shall inform the department of any rights the applicant or
2
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 recipient has to third-party benefits and shall inform the
2 department of the name and address of any person that is or
3 may be liable to provide third-party benefits. When the
4 department provides, pays for, or becomes liable for medical
5 services provided by a hospital, the recipient receiving such
6 medical services or his or her legal representative shall also
7 provide the information as to third-party benefits, as defined
8 in this section, to the hospital, which shall provide notice
9 thereof to the department in a manner specified by the
10 department.
11 (6) When the department provides, pays for, or becomes
12 liable for medical care under the Medicaid program, it has the
13 following rights, as to which the department may assert
14 independent principles of law, which shall nevertheless be
15 construed together to provide the greatest recovery from
16 third-party benefits:
17 (a) The agency has a cause of action against a liable
18 third party to recover the full amount of medical assistance
19 provided by Medicaid, and such cause of action is independent
20 of any rights or causes of action of the recipient.
21 (a)(b) The department is automatically subrogated to
22 any rights that an applicant, recipient, or legal
23 representative has to any third-party benefit for the full
24 amount of medical assistance provided by Medicaid. Recovery
25 pursuant to the subrogation rights created hereby shall not be
26 reduced, prorated, or applied to only a portion of a judgment,
27 award, or settlement, but is to provide full recovery by the
28 department from any and all third-party benefits. Equities of
29 a recipient, his or her legal representative, a recipient's
30 creditors, or health care providers shall not defeat, reduce,
31
3
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 or prorate recovery by the department as to its subrogation
2 rights granted under this paragraph.
3 (b)(c) By applying for or accepting medical
4 assistance, an applicant, recipient, or legal representative
5 automatically assigns to the department any right, title, and
6 interest such person has to any third-party benefit, excluding
7 any Medicare benefit to the extent required to be excluded by
8 federal law.
9 1. The assignment granted under this paragraph is
10 absolute, and vests legal and equitable title to any such
11 right in the department, but not in excess of the amount of
12 medical assistance provided by the department.
13 2. The department is a bona fide assignee for value in
14 the assigned right, title, or interest, and takes vested legal
15 and equitable title free and clear of latent equities in a
16 third person. Equities of a recipient, the recipient's legal
17 representative, his or her creditors, or health care providers
18 shall not defeat or reduce recovery by the department as to
19 the assignment granted under this paragraph.
20 3. By accepting medical assistance, the recipient
21 grants to the department the limited power of attorney to act
22 in his or her name, place, and stead to perform specific acts
23 with regard to third-party benefits, the recipient's assent
24 being deemed to have been given, including:
25 a. Endorsing any draft, check, money order, or other
26 negotiable instrument representing third-party benefits that
27 are received on behalf of the recipient as a third-party
28 benefit.
29 b. Compromising claims to the extent of the rights
30 assigned, provided that the recipient is not otherwise
31 represented by an attorney as to the claim.
4
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 (c)(d) The department is entitled to, and has, an
2 automatic lien for the full amount of medical assistance
3 provided by Medicaid to or on behalf of the recipient for
4 medical care furnished as a result of any covered injury or
5 illness for which a third party is or may be liable, upon the
6 collateral, as defined in s. 409.901.
7 1. The lien attaches automatically when a recipient
8 first receives treatment for which the department may be
9 obligated to provide medical assistance under the Medicaid
10 program. The lien is perfected automatically at the time of
11 attachment.
12 2. The department is authorized to file a verified
13 claim of lien. The claim of lien shall be signed by an
14 authorized employee of the department, and shall be verified
15 as to the employee's knowledge and belief. The claim of lien
16 may be filed and recorded with the clerk of the circuit court
17 in the recipient's last known county of residence or in any
18 county deemed appropriate by the department. The claim of
19 lien, to the extent known by the department, shall contain:
20 a. The name and last known address of the person to
21 whom medical care was furnished.
22 b. The date of injury.
23 c. The period for which medical assistance was
24 provided.
25 d. The amount of medical assistance provided or paid,
26 or for which Medicaid is otherwise liable.
27 e. The names and addresses of all persons claimed by
28 the recipient to be liable for the covered injuries or
29 illness.
30 3. The filing of the claim of lien pursuant to this
31 section shall be notice thereof to all persons.
5
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 4. If the claim of lien is filed within 1 year after
2 the later of the date when the last item of medical care
3 relative to a specific covered injury or illness was paid, or
4 the date of discovery by the department of the liability of
5 any third party, or the date of discovery of a cause of action
6 against a third party brought by a recipient or his or her
7 legal representative, record notice shall relate back to the
8 time of attachment of the lien.
9 5. If the claim of lien is filed after 1 year after
10 the later of the events specified in subparagraph 4., notice
11 shall be effective as of the date of filing.
12 6. Only one claim of lien need be filed to provide
13 notice as set forth in this paragraph and shall provide
14 sufficient notice as to any additional or after-paid amount of
15 medical assistance provided by Medicaid for any specific
16 covered injury or illness. The department may, in its
17 discretion, file additional, amended, or substitute claims of
18 lien at any time after the initial filing, until the
19 department has been repaid the full amount of medical
20 assistance provided by Medicaid or otherwise has released the
21 liable parties and recipient.
22 7. No release or satisfaction of any cause of action,
23 suit, claim, counterclaim, demand, judgment, settlement, or
24 settlement agreement shall be valid or effectual as against a
25 lien created under this paragraph, unless the department joins
26 in the release or satisfaction or executes a release of the
27 lien. An acceptance of a release or satisfaction of any cause
28 of action, suit, claim, counterclaim, demand, or judgment and
29 any settlement of any of the foregoing in the absence of a
30 release or satisfaction of a lien created under this paragraph
31 shall prima facie constitute an impairment of the lien, and
6
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 the department is entitled to recover damages on account of
2 such impairment. In an action on account of impairment of a
3 lien, the department may recover from the person accepting the
4 release or satisfaction or making the settlement the full
5 amount of medical assistance provided by Medicaid. Nothing in
6 this section shall be construed as creating a lien or other
7 obligation on the part of an insurer which in good faith has
8 paid a claim pursuant to its contract without knowledge or
9 actual notice that the department has provided medical
10 assistance for the recipient related to a particular covered
11 injury or illness. However, notice or knowledge that an
12 insured is, or has been a Medicaid recipient within 1 year
13 from the date of service for which a claim is being paid
14 creates a duty to inquire on the part of the insurer as to any
15 injury or illness for which the insurer intends or is
16 otherwise required to pay benefits.
17 8. The lack of a properly filed claim of lien shall
18 not affect the department's assignment or subrogation rights
19 provided in this subsection, nor shall it affect the existence
20 of the lien, but only the effective date of notice as provided
21 in subparagraph 5.
22 9. The lien created by this paragraph is a first lien
23 and superior to the liens and charges of any provider, and
24 shall exist for a period of 7 years, if recorded, after the
25 date of recording; and shall exist for a period of 7 years
26 after the date of attachment, if not recorded. If recorded,
27 the lien may be extended for one additional period of 7 years
28 by rerecording the claim of lien within the 90-day period
29 preceding the expiration of the lien.
30 10. The clerk of the circuit court for each county in
31 the state shall endorse on a claim of lien filed under this
7
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 paragraph the date and hour of filing and shall record the
2 claim of lien in the official records of the county as for
3 other records received for filing. The clerk shall receive as
4 his or her fee for filing and recording any claim of lien or
5 release of lien under this paragraph the total sum of $2. Any
6 fee required to be paid by the department shall not be
7 required to be paid in advance of filing and recording, but
8 may be billed to the department after filing and recording of
9 the claim of lien or release of lien.
10 11. After satisfaction of any lien recorded under this
11 paragraph, the department shall, within 60 days after
12 satisfaction, either file with the appropriate clerk of the
13 circuit court or mail to any appropriate party, or counsel
14 representing such party, if represented, a satisfaction of
15 lien in a form acceptable for filing in Florida.
16 (7) The department shall recover the full amount of
17 all medical assistance provided by Medicaid on behalf of the
18 recipient to the full extent of third-party benefits.
19 (a) Recovery of such benefits shall be collected
20 directly from:
21 1. Any third party;
22 2. The recipient or legal representative, if he or she
23 has received third-party benefits;
24 3. The provider of a recipient's medical services if
25 third-party benefits have been recovered by the provider;
26 notwithstanding any provision of this section, to the
27 contrary, however, no provider shall be required to refund or
28 pay to the department any amount in excess of the actual
29 third-party benefits received by the provider from a
30 third-party payor for medical services provided to the
31 recipient; or
8
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 4. Any person who has received the third-party
2 benefits.
3 (b) Upon receipt of any recovery or other collection
4 pursuant to this section, the department shall distribute the
5 amount collected as follows:
6 1. To itself, an amount equal to the state Medicaid
7 expenditures for the recipient plus any incentive payment made
8 in accordance with paragraph (14)(a).
9 2. To the Federal Government, the federal share of the
10 state Medicaid expenditures minus any incentive payment made
11 in accordance with paragraph (14)(a) and federal law, and
12 minus any other amount permitted by federal law to be
13 deducted.
14 3. To the recipient, after deducting any known amounts
15 owed to the department for any related medical assistance or
16 to health care providers, any remaining amount. This amount
17 shall be treated as income or resources in determining
18 eligibility for Medicaid.
19 (8) The department shall require an applicant or
20 recipient, or the legal representative thereof, to cooperate
21 in the recovery by the department of third-party benefits of a
22 recipient and in establishing paternity and support of a
23 recipient child born out of wedlock. As a minimal standard of
24 cooperation, the recipient or person able to legally assign a
25 recipient's rights shall:
26 (a) Appear at an office designated by the department
27 to provide relevant information or evidence.
28 (b) Appear as a witness at a court or other
29 proceeding.
30 (c) Provide information, or attest to lack of
31 information, under penalty of perjury.
9
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 (d) Pay to the department any third-party benefit
2 received.
3 (e) Take any additional steps to assist in
4 establishing paternity or securing third-party benefits, or
5 both.
6 (f) Paragraphs (a)-(e) notwithstanding, the department
7 shall have the discretion to waive, in writing, the
8 requirement of cooperation for good cause shown and as
9 required by federal law.
10 (9) In the event that medical assistance has been
11 provided by Medicaid to more than one recipient, and the
12 agency elects to seek recovery from liable third parties due
13 to actions by the third parties or circumstances which involve
14 common issues of fact or law, the agency may bring an action
15 to recover sums paid to all such recipients in one proceeding.
16 In any action brought under this subsection, the evidence code
17 shall be liberally construed regarding the issues of causation
18 and of aggregate damages. The issue of causation and damages
19 in any such action may be proven by use of statistical
20 analysis.
21 (a) In any action under this subsection wherein the
22 number of recipients for which medical assistance has been
23 provided by Medicaid is so large as to cause it to be
24 impracticable to join or identify each claim, the agency shall
25 not be required to so identify the individual recipients for
26 which payment has been made, but rather can proceed to seek
27 recovery based upon payments made on behalf of an entire class
28 of recipients.
29 (b) In any action brought pursuant to this subsection
30 wherein a third party is liable due to its manufacture, sale,
31 or distribution of a product, the agency shall be allowed to
10
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 proceed under a market share theory, provided that the
2 products involved are substantially interchangeable among
3 brands, and that substantially similar factual or legal issues
4 would be involved in seeking recovery against each liable
5 third party individually.
6 (9)(10) The department shall deny or terminate
7 eligibility for any applicant or recipient who refuses to
8 cooperate as required in subsection (8), unless cooperation
9 has been waived in writing by the department as provided in
10 paragraph (8)(f). However, any denial or termination of
11 eligibility shall not reduce medical assistance otherwise
12 payable by the department to a provider for medical care
13 provided to a recipient prior to denial or termination of
14 eligibility.
15 (10)(11) An applicant or recipient shall be deemed to
16 have provided to the department the authority to obtain and
17 release medical information and other records with respect to
18 such medical care, for the sole purpose of obtaining
19 reimbursement for medical assistance provided by Medicaid.
20 (11)(12) The department may, as a matter of right, in
21 order to enforce its rights under this section, institute,
22 intervene in, or join any legal or administrative proceeding
23 in its own name in one or more of the following capacities:
24 individually, as subrogee of the recipient, as assignee of the
25 recipient, or as lienholder of the collateral.
26 (a) If either the recipient, or his or her legal
27 representative, or the department brings an action against a
28 third party, the recipient, or the recipient's legal
29 representative, or the department, or their attorneys, shall,
30 within 30 days after filing the action, provide to the other
31 written notice, by personal delivery or registered mail, of
11
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 the action, the name of the court in which the case is
2 brought, the case number of such action, and a copy of the
3 pleadings. If an action is brought by either the department,
4 or the recipient or the recipient's legal representative, the
5 other may, at any time before trial on the merits, become a
6 party to, or shall consolidate his or her action with the
7 other if brought independently. Unless waived by the other,
8 the recipient, or his or her legal representative, or the
9 department shall provide notice to the other of the intent to
10 dismiss at least 21 days prior to voluntary dismissal of an
11 action against a third party. Notice to the department shall
12 be sent to an address set forth by rule. Notice to the
13 recipient or his or her legal representative, if represented
14 by an attorney, shall be sent to the attorney, and, if not
15 represented, then to the last known address of the recipient
16 or his or her legal representative. The provisions of this
17 subsection shall not apply to any actions brought pursuant to
18 subsection (9), and in any such action, no notice to
19 recipients is required, and the recipients shall have no right
20 to become a party to any action brought under such subsection.
21 (b) An action by the department to recover damages in
22 tort under this subsection, which action is derivative of the
23 rights of the recipient or his or her legal representative,
24 shall not constitute a waiver of sovereign immunity pursuant
25 to s. 768.14.
26 (c) In the event of judgment, award, or settlement in
27 a claim or action against a third party, the court shall order
28 the segregation of an amount sufficient to repay the
29 department's expenditures for medical assistance, plus any
30 other amounts permitted under this section, and shall order
31 such amounts paid directly to the department.
12
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 (d) No judgment, award, or settlement in any action by
2 a recipient or his or her legal representative to recover
3 damages for injuries or other third-party benefits, when the
4 department has an interest, shall be satisfied without first
5 giving the department notice and a reasonable opportunity to
6 file and satisfy its lien, and satisfy its assignment and
7 subrogation rights or proceed with any action as permitted in
8 this section.
9 (e) Except as otherwise provided in this section,
10 notwithstanding any other provision of law, the entire amount
11 of any settlement of the recipient's action or claim involving
12 third-party benefits, with or without suit, is subject to the
13 department's claims for reimbursement of the amount of medical
14 assistance provided and any lien pursuant thereto.
15 (f) Notwithstanding any provision in this section to
16 the contrary, in the event of an action in tort against a
17 third party in which the recipient or his or her legal
18 representative is a party and in which the amount of any
19 judgment, award, or settlement from third-party benefits,
20 excluding medical coverage as defined in subparagraph 4.,
21 after reasonable costs and expenses of litigation, is an
22 amount equal to or less than 200 percent of the amount of
23 medical assistance provided by Medicaid less any medical
24 coverage paid or payable to the department, then distribution
25 of the amount recovered shall be as follows:
26 1. Any fee for services of an attorney retained by the
27 recipient or his or her legal representative shall not exceed
28 an amount equal to 25 percent of the recovery, after
29 reasonable costs and expenses of litigation, from the
30 judgment, award, or settlement.
31
13
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 2. After attorney's fees, two-thirds of the remaining
2 recovery shall be designated for past medical care and paid to
3 the department for medical assistance provided by Medicaid.
4 3. The remaining amount from the recovery shall be
5 paid to the recipient.
6 4. For purposes of this paragraph, "medical coverage"
7 means any benefits under health insurance, a health
8 maintenance organization, a preferred provider arrangement, or
9 a prepaid health clinic, and the portion of benefits
10 designated for medical payments under coverage for workers'
11 compensation, personal injury protection, and casualty.
12 (g) In the event that the recipient, his or her legal
13 representative, or the recipient's estate brings an action
14 against a third party, notice of institution of legal
15 proceedings, notice of settlement, and all other notices
16 required by this section or by rule shall be given to the
17 department, in Tallahassee, in a manner set forth by rule. All
18 such notices shall be given by the attorney retained to assert
19 the recipient's or legal representative's claim, or, if no
20 attorney is retained, by the recipient, the recipient's legal
21 representative, or his or her estate.
22 (h) Except as otherwise provided in this section,
23 actions to enforce the rights of the department under this
24 section shall be commenced within 5 years after the date a
25 cause of action accrues, with the period running from the
26 later of the date of discovery by the department of a case
27 filed by a recipient or his or her legal representative, or of
28 discovery of any judgment, award, or settlement contemplated
29 in this section, or of discovery of facts giving rise to a
30 cause of action under this section the provision of medical
31 assistance to a recipient. Each item of expense provided by
14
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 the agency shall be considered to constitute a separate cause
2 of action for purposes of this subsection. The defense of
3 statute of repose shall not apply to any action brought under
4 this section by the agency. Nothing in this paragraph affects
5 or prevents a proceeding to enforce a lien during the
6 existence of the lien as set forth in subparagraph (6)(c)9.
7 (i) Upon the death of a recipient, and within the time
8 prescribed by ss. 733.702 and 733.710, the department, in
9 addition to any other available remedy, may file a claim
10 against the estate of the recipient for the total amount of
11 medical assistance provided by Medicaid for the benefit of the
12 recipient. Claims so filed shall take priority as class 3
13 claims as provided by s. 733.707(1)(c). The filing of a claim
14 pursuant to this paragraph shall neither reduce nor diminish
15 the general claims of the department under s. 414.28, except
16 that the department may not receive double recovery for the
17 same expenditure. Claims under this paragraph shall be
18 superior to those under s. 414.28. The death of the recipient
19 shall neither extinguish nor diminish any right of the
20 department to recover third-party benefits from a third party
21 or provider. Nothing in this paragraph affects or prevents a
22 proceeding to enforce a lien created pursuant to this section
23 or a proceeding to set aside a fraudulent conveyance as
24 defined in subsection (16).
25 (12)(13) No action taken by the department shall
26 operate to deny the recipient's recovery of that portion of
27 benefits not assigned or subrogated to the department, or not
28 secured by the department's lien. The department's rights of
29 recovery created by this section, however, shall not be
30 limited to some portion of recovery from a judgment, award, or
31 settlement. Only the following benefits are not subject to the
15
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 rights of the department: benefits not related in any way to a
2 covered injury or illness; proceeds of life insurance coverage
3 on the recipient; proceeds of insurance coverage, such as
4 coverage for property damage, which by its terms and
5 provisions cannot be construed to cover personal injury,
6 death, or a covered injury or illness; proceeds of disability
7 coverage for lost income; and recovery in excess of the amount
8 of medical benefits provided by Medicaid after repayment in
9 full to the department.
10 (13)(14) No action of the recipient shall prejudice
11 the rights of the department under this section. No
12 settlement, agreement, consent decree, trust agreement,
13 annuity contract, pledge, security arrangement, or any other
14 device, hereafter collectively referred to in this subsection
15 as a "settlement agreement," entered into or consented to by
16 the recipient or his or her legal representative shall impair
17 the department's rights. However, in a structured settlement,
18 no settlement agreement by the parties shall be effective or
19 binding against the department for benefits accrued without
20 the express written consent of the department or an
21 appropriate order of a court having personal jurisdiction over
22 the department.
23 (14)(15) The department is authorized to enter into
24 agreements to enforce or collect medical support and other
25 third-party benefits.
26 (a) If a cooperative agreement is entered into with
27 any agency, program, or subdivision of the state, or any
28 agency, program, or legal entity of or operated by a
29 subdivision of the state, or with any other state, the
30 department is authorized to make an incentive payment of up to
31 15 percent of the amount actually collected and reimbursed to
16
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 the department, to the extent of medical assistance paid by
2 Medicaid. Such incentive payment is to be deducted from the
3 federal share of that amount, to the extent authorized by
4 federal law. The department may pay such person an additional
5 percentage of the amount actually collected and reimbursed to
6 the department as a result of the efforts of the person, but
7 no more than a maximum percentage established by the
8 department. In no case shall the percentage exceed the lesser
9 of a percentage determined to be commercially reasonable or 15
10 percent, in addition to the 15-percent incentive payment, of
11 the amount actually collected and reimbursed to the department
12 as a result of the efforts of the person under contract.
13 (b) If an agreement to enforce or collect third-party
14 benefits is entered into by the department with any person
15 other than those described in paragraph (a), including any
16 attorney retained by the department who is not an employee or
17 agent of any person named in paragraph (a), then the
18 department may pay such person a percentage of the amount
19 actually collected and reimbursed to the department as a
20 result of the efforts of the person, to the extent of medical
21 assistance paid by Medicaid. In no case shall the percentage
22 exceed a maximum established by the department, which shall
23 not exceed the lesser of a percentage determined to be
24 commercially reasonable or 30 percent of the amount actually
25 collected and reimbursed to the department as a result of the
26 efforts of the person under contract.
27 (c) An agreement pursuant to this subsection may
28 permit reasonable litigation costs or expenses to be paid from
29 the department's recovery to a person under contract with the
30 department.
31
17
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 (d) Contingency fees and costs incurred in recovery
2 pursuant to an agreement under this subsection may, for
3 purposes of determining state and federal share, be deemed to
4 be administrative expenses of the state. To the extent
5 permitted by federal law, such administrative expenses shall
6 be shared with, or fully paid by, the Federal Government.
7 (15)(16) Insurance and other third-party benefits may
8 not contain any term or provision which purports to limit or
9 exclude payment or provisions of benefits for an individual if
10 the individual is eligible for, or a recipient of, medical
11 assistance from Medicaid, and any such term or provision shall
12 be void as against public policy.
13 (16)(17) Any transfer or encumbrance of any right,
14 title, or interest to which the department has a right
15 pursuant to this section, with the intent, likelihood, or
16 practical effect of defeating, hindering, or reducing recovery
17 by the department for reimbursement of medical assistance
18 provided by Medicaid, shall be deemed to be a fraudulent
19 conveyance, and such transfer or encumbrance shall be void and
20 of no effect against the claim of the department, unless the
21 transfer was for adequate consideration and the proceeds of
22 the transfer are reimbursed in full to the department, but not
23 in excess of the amount of medical assistance provided by
24 Medicaid.
25 (17)(18) A recipient or his or her legal
26 representative or any person representing, or acting as agent
27 for, a recipient or the recipient's legal representative, who
28 has notice, excluding notice charged solely by reason of the
29 recording of the lien pursuant to paragraph (6)(d), or who has
30 actual knowledge of the department's rights to third-party
31 benefits under this section, who receives any third-party
18
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 benefit or proceeds therefrom for a covered illness or injury,
2 is required either to pay the department the full amount of
3 the third-party benefits, but not in excess of the total
4 medical assistance provided by Medicaid, or to place the full
5 amount of the third-party benefits in a trust account for the
6 benefit of the department pending judicial or administrative
7 determination of the department's right thereto. Proof that
8 any such person had notice or knowledge that the recipient had
9 received medical assistance from Medicaid, and that
10 third-party benefits or proceeds therefrom were in any way
11 related to a covered illness or injury for which Medicaid had
12 provided medical assistance, and that any such person
13 knowingly obtained possession or control of, or used,
14 third-party benefits or proceeds and failed either to pay the
15 department the full amount required by this section or to hold
16 the full amount of third-party benefits or proceeds in trust
17 pending judicial or administrative determination, unless
18 adequately explained, gives rise to an inference that such
19 person knowingly failed to credit the state or its agent for
20 payments received from social security, insurance, or other
21 sources, pursuant to s. 414.39(4)(b), and acted with the
22 intent set forth in s. 812.014(1).
23 (a) In cases of suspected criminal violations or
24 fraudulent activity, the department may take any civil action
25 permitted at law or equity to recover the greatest possible
26 amount, including, without limitation, treble damages under
27 ss. 772.11 and 812.035(7).
28 (b)(a) The department is authorized to investigate and
29 to request appropriate officers or agencies of the state to
30 investigate suspected criminal violations or fraudulent
31 activity related to third-party benefits, including, without
19
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 limitation, ss. 414.39 409.325 and 812.014. Such requests may
2 be directed, without limitation, to the Medicaid Fraud Control
3 Unit of the Office of the Attorney General, or to any state
4 attorney. Pursuant to s. 409.913, the Attorney General has
5 primary responsibility to investigate and control Medicaid
6 fraud.
7 (c)(b) In carrying out duties and responsibilities
8 related to Medicaid fraud control, the department may subpoena
9 witnesses or materials within or outside the state and,
10 through any duly designated employee, administer oaths and
11 affirmations and collect evidence for possible use in either
12 civil or criminal judicial proceedings.
13 (d)(c) All information obtained and documents prepared
14 pursuant to an investigation of a Medicaid recipient, the
15 recipient's legal representative, or any other person relating
16 to an allegation of recipient fraud or theft is confidential
17 and exempt from s. 119.07(1):
18 1. Until such time as the department takes final
19 agency action;
20 2. Until such time as the Department of Legal Affairs
21 Attorney General refers the case for criminal prosecution;
22 3. Until such time as an indictment or criminal
23 information is filed by a state attorney in a criminal case;
24 or
25 4. At all times if otherwise protected by law.
26 (19) In cases of suspected criminal violations or
27 fraudulent activity, on the part of any person including a
28 liable third party, the department is authorized to take any
29 civil action permitted at law or equity to recover the
30 greatest possible amount, including without limitation, treble
31 damages under s. 772.73. In any action in which the recipient
20
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 has no right to intervene, or does not exercise his or her
2 right to intervene, any amounts recovered under this
3 subsection shall be the property of the agency, and the
4 recipient shall have no right or interest in such recovery.
5 (18)(20) In recovering any payments in accordance with
6 this section, the department is authorized to make appropriate
7 settlements.
8 (19)(21) Notwithstanding any provision in this section
9 to the contrary, the department shall not be required to seek
10 reimbursement from a liable third party on claims for which
11 the department determines that the amount it reasonably
12 expects to recover will be less than the cost of recovery, or
13 that recovery efforts will otherwise not be cost-effective.
14 (20)(22) Entities providing health insurance as
15 defined in s. 624.603, and health maintenance organizations
16 and prepaid health clinics as defined in chapter 641, shall
17 provide such records and information as are necessary to
18 accomplish the purpose of this section, unless such
19 requirement results in an unreasonable burden.
20 (a) The secretary of the department and the Insurance
21 Commissioner shall enter into a cooperative agreement for
22 requesting and obtaining information necessary to effect the
23 purpose and objective of this section.
24 1. The department shall request only that information
25 necessary to determine whether health insurance as defined
26 pursuant to s. 624.603, or those health services provided
27 pursuant to chapter 641, could be, should be, or have been
28 claimed and paid with respect to items of medical care and
29 services furnished to any person eligible for services under
30 this section.
31
21
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 2. All information obtained pursuant to subparagraph
2 1. is confidential and exempt from s. 119.07(1).
3 3. The cooperative agreement or rules adopted under
4 this subsection may include financial arrangements to
5 reimburse the reporting entities for reasonable costs or a
6 portion thereof incurred in furnishing the requested
7 information. Neither the cooperative agreement nor the rules
8 shall require the automation of manual processes to provide
9 the requested information.
10 (b) The department and the Department of Insurance
11 jointly shall adopt rules for the development and
12 administration of the cooperative agreement. The rules shall
13 include the following:
14 1. A method for identifying those entities subject to
15 furnishing information under the cooperative agreement.
16 2. A method for furnishing requested information.
17 3. Procedures for requesting exemption from the
18 cooperative agreement based on an unreasonable burden to the
19 reporting entity.
20 (21)(23) The department is authorized to adopt rules
21 to implement the provisions of this section and federal
22 requirements.
23 Section 2. Paragraph (a) of subsection (9) of section
24 624.424, Florida Statutes, is amended to read:
25 624.424 Annual statement and other information.--
26 (9)(a) Each authorized insurer shall, pursuant to s.
27 409.910(20) s. 409.910(22), provide records and information to
28 the Agency for Health Care Administration Department of Health
29 and Rehabilitative Services to identify potential insurance
30 coverage for claims filed with that agency department and its
31
22
CODING: Words stricken are deletions; words underlined are additions.
HB 3077, Second Engrossed
1 fiscal agents for payment of medical services under the
2 Medicaid program.
3 Section 3. This act shall take effect upon becoming a
4 law and shall operate retroactively to July 1, 1994, except
5 that any action filed prior to March 1, 1998, any appeal of
6 such action, any matter related to such action, any
7 enforcement of the terms of a settlement agreement entered in
8 such action, or any action filed prior to March 1, 1998, in
9 which the parties have agreed to settle and the trial court
10 has approved the settlement agreement, whether or not the time
11 to appeal the approval of such settlement has expired, remains
12 covered by and shall proceed under the law as it existed on
13 the date of the filing of such action. If any settlement
14 agreement entered in any such action filed prior to March 1,
15 1998, is overturned, canceled, or terminated, or is altered in
16 any material manner by subsequent court order, such action
17 remains covered by and shall proceed under the law as it
18 existed on the date of the filing of such action.
19
20
21
22
23
24
25
26
27
28
29
30
31
23