House Bill 3077er

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    ENROLLED

    1998 Legislature                     HB 3077, Second Engrossed



  1

  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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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.


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    ENROLLED

    1998 Legislature                     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.


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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.


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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.


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

    1998 Legislature                     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


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    ENROLLED

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  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


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  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.

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  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


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  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


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  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


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  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.

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  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

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    ENROLLED

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  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.

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