NCGS 108A-57 Medicaid Lien in NC- Answers to questions on what law applies in 2018

Friends:

    This post is an update on an earlier post concerning changes to the law of Medicaid subrogation in North Carolina.  The earlier post can be seen here:  Medicaid: "Ahlborn hearings" are back thanks to the 2018 federal budget which makes Medicaid provide lien reduction hearings again. But watch the deadlines!

    Here is the short version of the history:  In 2013 NC amended the law on Medicaid subrogation to allow for a reduction hearing to determine Medicaid's final lien in a third party injury case.  That law stood until October 1 of 2017 when a small change to the Federal law had the effect of making the NC statute inapplicable.  In anticipation of the Federal change, NC lawmakers had inserted a law in the July 2017 state budget that said in essence, "if the federal changes happen on October 1, then our law changes to this...".  The new state law eliminated the reduction hearings and also eliminated Medicaid sharing prorata with valid medical lien holders. 

    Then on February 9, 2018, the Federal Budget was passed and it retroactively repealed the changes that went into effect on October 1 in the federal law.  In my opinion, this had the effect of essentially time traveling back to the last day of September, 2017 and making the October 1 federal changes never happen.  Which means, of course, that the NC changes conditioned on the Federal changes, never happened either.

    The end result is that as of February 8, 2018, the Medicaid lien law in NC was back to the statute that existed since 2013.  Or at least that's what i thought.

    That leads me to now.  I filed a declaratory judgment suit and motion to determine Medicaid lien in March of 2018 to request a Medicaid lien reduction under the 2013 NC law.  In the Compliant I set out all of the changes described above and that the law of NC had "reverted" to the pre-October 1, 2018 law.

    The State of North Carolina filed an Answer to the complaint an unequivocally Admitted all of the following allegations in the Complaint.

    Long story short, my legal theory set out above is correct.

Below are the legal allegations in the Complaint.

 

 

Jurisdiction, Venue, and Governing Law

 

  1. This Court has subject matter jurisdiction over this action pursuant to N.C. Gen. Stat. §7A-240 and §7A-243. This Court has personal jurisdiction in this matter pursuant to N.C. Gen. Stat. §1-75.4.

 

  1. Venue is properly laid in this Court pursuant to N.C. Gen. Stat. §1-80 and §1-82.

 

  1. That NCGS §108A-57 governs Medicaid lien recovery in North Carolina.

 

  1. That NCGS §108A-57 was written, in part, to comply with the requirements set out in Wos v. E.M.A., __ U.S. __, 133 S. Ct. 1391, 1402 (2013) which affirmed that Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 284, 126 S. Ct. 1752 (2006) applied in North Carolina. Ahlborn established that the Department of Health and Human Services is prohibited from recovering “a portion of a Medicaid beneficiary’s tort judgment or settlement not designated as payments for medical care” because such recovery is barred by the federal Medicaid statute’s anti-lien provision, 42 U.S.C. § 1396p(a)(1).

 

  1. That NCGS §108A-57(a2) provides a mechanism for a determination of the portion of the beneficiary's gross recovery that represents compensation for the Medicaid claim and requires that an application for determining the lien under this subsection shall be filed with the court  “no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court.”

 

  1. That on October 1, 2017, NCGS §108A-57, was amended pursuant to NC Senate Bill 257. The amendment, which was conditioned upon changes to federal law going into effect the same day, said:

 

“ SECTION 11H.23. If Section 202(b) of the Bipartisan Budget Act of 2013, P.L. 113-67, takes effect on October 1, 2017, as provided in Section 202(c) of that act, as amended by Section 211 of the Protecting Access to Medicare Act of 2014, P.L. 113-93, and Section 220 of the Medicare Access and CHIP Reauthorization Act of 2015, P.L. 114-10, then G.S. 108A-57 reads as rewritten...”

 

  1. On October 1, 2017, the changes to the federal law went into effect which triggered the changes to North Carolina law, eliminating procedure to request a court for the determination of a medicaid lien pursuant to NCGS §108A-57(a2).

 

  1. On February 9, the United States Congress passed, and the President signed,  H.R.1892 - Bipartisan Budget Act of 2018, which contained “SEC. 53102. THIRD PARTY LIABILITY IN MEDICAID AND CHIP”.

 

  1. SEC. 53102 of H.R.1892, the Bipartisan Budget Act of 2018, repealed subsection (b) of section 202 of the Bipartisan Budget Act of 2013. The repeal stated that it “includ[es]any amendments made by such subsection” and the repeal “shall be applied and administered as if such amendments had never been enacted.”

 

  1. The effect of all of these statutory changes on February 9, 2018 was that because the federal changes “had never been enacted” the changes to NCGS §108A-57 set out in NC Senate Bill 257 never took effect and the provisions of NCGS §108A-57(a2) allowing for judicial determination of Medicaid's lien came back into existence on February 9, 2018.

 

  1. That any matter settled between October 1, 2017 and February 9, 2018, could not apply for a lien determination during that time period and that NC DHHS properly refused to grant requests for reductions during that time frame.

 

  1. That Plaintiff's Workers' Compensation case was approved for settlement in an Order of the Industrial Commission in IC. File No. Y26729 filed on January 24, 2018.

 

  1. That upon the reinstatement of NCGS §108A-57(a2) on February 9, 2018, cases settled during the October 1, 2017 through February 9, 2018 period should have 30 days to file for hearings pursuant to NCGS §108A-57(a2) and that the first day they could request such hearing was February 9, 2018.

 

  1. That Plaintiff in this matter has filed for this hearing pursuant to NCGS §108A-57(a2) within 30 days of February 9, 2018 and has satisfied the filing requirements of NCGS §108A-57(a2).

Again, all those allegations were ADMITTED by the State.

    This should settle the question of what law applies now.  I will also point out that the website for the General Assembly is still displaying the "new" (but incorrect) NCGS 108A-57.   You can view the "old" (but now the current) NCGS 108A-57 in the body of the budget bill, Senate Bill 257 (2017) beginning at the very bottom of page 222 and continuing on to 223.  All of the "repealed" portions in that Bill are now law again.  Here is the link- go to page 222 or do a search for "subrogation" within the PDF.    www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S257v9.pdf

    My firm is now taking in limited numbers of Medicaid reduction cases for other lawyers. Make sure you remember that you only have 30 days to file and serve your Motion to Reduce Medicaid lien beginning on the date that the client settles the case (signs the Release of Claims or a court approves a settlement).

    Feel free to email me or call me if you have matter you think might qualify for a reduction. 

 

Chris Nichols

www.NicholsTrialLaw.com

Chris@NicholsTrialLaw.com

 

www.NicholsTrialLaw.com 1.800.906.5984

How long do I have to settle my case in NC? What do I have to do at my three year statute of limitations for personal injury? How long do I have to settle a wrongful death case?

People!  Do not let the statute of limitations slip past on your personal injury cases in North Carolina.  I've had three calls this week from people who did not have lawyers and who waited until the last second, or past the last second, to call for advice. None of these calls ended on a happy note.

 

In NC you have three years to settle or file a lawsuit for personal injury (but not death, that's two years)

In North Carolina you have three years to either settle a personal injury case or file a lawsuit.  I did not say "file a claim."  I did not say "talk with an insurance adjuster".  I did not say "be in the middle of negotiations."  

 

On the third anniversary of your car wreck, you either need to have a settlement worked out, in writing and agree upon by the insurance adjuster and you, or you need to file an actual lawsuit in a court of law in NC.

Image result for one second left on clock

If you are still negotiating with that adjuster at midnight on the third anniversary of your car wreck, you can never get anything for your claim.  The next minutes that adjuster will say "Sorry, your statute of limitations ran, you have no claim."  And so you ask, "Wouldn't the insurance company tell me that my time is running out?"  The answer is NO.  In fact, I've seen situations where the insurance adjusters actively seek to delay the settlement.

 

The wrongful death statute in North Carolina has a two year statute of limitations

If the car wreck resulted in a death, or wrongful death in North Carolina, the time limit is TWO YEARS. Also, to sue for the wrongful death of a loved one, there must be an Estate set up in the name of the deceased and an Administrator or Executor must actually be the party that sues.  Cases like that look like this:

The Estate of John Doe, Susan Doe, Administrator      V.       Big Truck Company, LLC 

 

Setting up an Estate takes time. And even though there may be one type of Estate set up, it might not be the right type to bring a wrongful death claim.

 

I think I get this statute stuff, do I have to have a lawyer?

Not every case needs a lawyer.  Really, a lawyer just told you that.  I talk to a lot of people on the phone, give them a few pointers and send them on their way.  It's sometimes a good idea to settle your own case when it is simple and small.  But complicated cases probably need lawyers. So it's always a good idea to call a lawyer like me, and ask.

 

But really, if you call me on the day that your statute of limitations is about to run out, there is a 95% chance that I will not be able to save you and your case.  Lawyers can not send an email to the court to file a lawsuit.  It sometimes takes days to draft the paperwork.  We have to find the Defendant and make sure we can serve them with papers. We need to see police reports.  This takes time.

 

In law we frequently abbreviate Statute of Limitation as SOL. And if you miss one, you are SOL on your SOL. 

 

When is the latest you should call a lawyer for a personal injury case?

I would say that the latest that I would get in touch would be six months before the statute runs out.  Put another way, two and half years after the accident for personal injury and one and a half years for wrongful death.  That gives the lawyer time to gather your medical records, talk to experts, file the lawsuit, and get it served on the defendant.  You see, even though the insurance company pays the claim, the other driver is the one who gets named in the lawsuit. So it's not as easy as my office sending a letter to State Farm. We actually have to send the Sheriff or a certified letter to someone so they can be "served."

If you waited past two and half years, you should still call for advice.  Just know that a lot of lawyers don't like taking cases that close to the statute of limitations.

 

What about children or kids?  How long do minors have to settle their personal injury claims or file a lawsuit?

In NC, a minor is anyone under age 18.  Minor's statute of limitations work differently than adults. A  minor's statute does not BEGIN to run until they are age 18.  Then it runs the normal 3 years for personal injury.  Crazy, right?  So if you are in a car accident at age 2, you will have until your 21st birthday to settle the claim or file a lawsuit!  This is also true for other injury claims, like sexual abuse.

But there is a catch....  (there is always a catch, right?).  The catch is this:  In North Carolina, the medical bills for an injured minor (anyone under age 18) "belong" to the mom, dad, or legal guardian of the minor.  What does that mean?  It means that because a minor can't sign a contract, when a minor goes to the hospital or doctor and has a bill for services, that bill is actually the parent or guardian's bill.  Don't pay it?  The parent or guardian gets sued by the hospital, not the minor.

So what's the catch?  Well, the catch is this- in the example above where the two year old gets hurt in a car wreck, let's assume the medical bills are $50,000.  Three years from the date of the wreck, the parent/guardian's statute of limitations to sue for those medical bills expires. So on 3 years +1 day, the minor can still sue for pain and suffering and other economic wages, but NOT for past medical expenses.

But, there is a catch to the catch!  There is a way for the parents to assign the claim for medical bills to the minor child so that those medical bills become part of the claim for the minor that does not run out until age 21.  This can be tricky and I recommend lawyer supervision to deal with this.  The good news is that it can be done quickly, so if you are reading this on the 2 year 364th day of the anniversary of an injury to a minor, it might not be too late to fix that problem.  Call me!

Heartbreaker

I spoke to someone today who told me that the adjuster was discussing her case with her one day before her three year statute of limitations. She even asked if that was going to be a problem and the adjuster said "you have an open file claim." That made the person feel good, even though it was a meaningless phrase.

 

When she called the day after the 3 year anniversary of her accident, the adjuster said "sorry, you didn't file a lawsuit in time, you have no claim."

 

No, she can't sue him for that.  Adjusters work for the driver that hit you!  Their job is to pay you the least amount of money possible. That's what they get paid to do. Not all of them are this heartless, some would warn you to get a lawyer or file a law suit. A lot of them are very good people. But consumers don't really have the information or ability to decide who is who.

 

I had to tell this fine person that she no longer had a claim.  It was a heartbreaker.

 

So if you've been waiting, even if you are still being treated for injuries, please call me or another lawyer and just get some advice (free and over the phone) on your time limits and whether you even need a lawyer.  I've been doing this (looks at watch) for 23 years now, so I've probably handled a case like yours before.  Let's talk.

 

Chris Nichols, Attorney

800-906-5984

www.NicholsTrialLaw.com 1.800.906.5984

Is Driving Drowsy an Occupational Hazard for Truck Drivers?

Below is a guest blog by Ben DiMaggio, a sleep researcher.   My law firm deals with a lot of "drowsy driving" cases where truckers and regular drivers work too long and drive too late- often with deadly consequences.  So when Ben from www.Tuck.com offfered to do a guest blog on sleep deprived driving, I took him up on it!

 
Before we get into Ben's work, some basic facts on how dangerous sleep deprived driving can be:
 
Drowsy driving is a massive problem: A CDC study of drowsy driving found that it was a factor in 72,000 accidents and 800 deaths in the United States in just one year.
 
Commercial drivers are especially dangerous: Many different groups are at high risk for driving while drowsy, including teenagers and shift workers. However, commercial drivers who spend long days and nights behind the wheel are especially dangerous, with 13% of large truck drivers involved in crashes reporting feeling sleepy while driving.
 
Drowsy driving can be prevented: Drowsy driving is one of the most preventable causes of car accidents. Just a few easy changes to a driver’s sleep schedule can dramatically reduce the risk of falling asleep behind the wheel. In some cases, drivers who feel drowsy after a full night’s sleep may need to be evaluated for sleep disorders.

Take it away, Ben:   

Is Driving Drowsy an Occupational Hazard for Truck Drivers?

Mile after mile, commercial truck drivers push to meet deadlines and get their loads delivered on time. As a business, the trucking industry relies on moving the greatest volume of goods in the shortest amount of time. However, to do so, many drivers get on the road while sleep deprived putting themselves and other drivers in danger.

Take a Look at Sleep Deprivation

Lack of sleep wreaks havoc on the mind and body, yet many people get far less than the recommended seven to eight hours of sleep each night. Sleep deprivation can cause:


  • mood changes, including increased aggression

  • increased risk of diabetes and heart disease

  • reduced immune system efficiency

  • changes in appetite

  • increased blood pressure

  • increased risk of heart attack and stroke


These health risks are daunting, but even more frightening are the effects on the brain and what they mean for fatigued drivers.


  • Memory: Forgetting the last few miles driven is a form of short-term memory loss that’s common with sleep deprivation.

  • Decision-Making Skills: Driving requires a series of decision-making tasks. When tired, those abilities go down putting drivers at risk for poor or slow decisions in an emergency.

  • Reaction Times: Neurons, the cells that send signals in the brain, slow down, making reaction and thinking times slower as well. That means less ability to react to road conditions or hazards.

Truck Drivers Pushing the Limits

What makes sleep-deprived truck drivers so scary? The large, heavy vehicles they drive. When passenger cars get in accidents with commercial trucks, the resulting injuries tend to be more severe. Car accident injuries often involve brain, neck, and back injuries that can permanently change lives. That kind of risk deserves some special attention.


Many drivers are paid by the mile, making them far more likely to push the number of miles driven in a day to make ends meet. They may also be encouraged to keep timelines that promote skipping sleep in favor of an on-time delivery.


There are regulations in place that help drivers get better sleep. Drivers can only drive 70 hours per week with an 11-hour limit of drive time per day. There are also required rest periods each day and an extended 34-hour rest period before a new work week can begin. But drivers and companies are tempted to push against regulations.


The result--fatigued drivers who try to meet the requirements of their occupation. GPS trackers are often used to monitor miles to be sure drivers take their mandatory rest periods while other companies rely on their drivers to monitor themselves. Most truck drivers do their best, but the temptation to drive while fatigued increases when the pressure to deliver goes up and money is on the line for the driver and the company.


Even if drivers follow the regulations exactly, they might not get the kind of rest they need for restorative sleep. A comfortable mattress, consistent bedtime, controlled temperatures, and silence can be hard to find while sleeping in the cab of a truck or motel.

Better Sleep and Healthier Drivers Mean Fewer Accidents

Nearly 72,000 accidents each year are related to drowsy driving. Recognizing the signs of sleep deprivation and taking action can help. Pulling over at a rest area or gas station for a short nap or walk can be enough to give the body an extra boost. When it comes to safety, sleep has to be a priority for drivers and the companies for which they work.  


Ben DiMaggio
 
About the Author: 
 
Ben DiMaggio is a researcher for the sleep science and health organization Tuck.com. Ben specializes in investigating how sleep, and sleep deprivation, affect public health and safety. Ben lives in Portland, Oregon. His worst sleep habit is checking his email right before bed.
Tuck Sleep Foundation is a community devoted to improving sleep hygiene, health and wellness through the creation and dissemination of comprehensive, unbiased, free web-based resources. Tuck has been featured on NPR, Lifehacker, Radiolab and is referenced by many colleges/universities and sleep organizations across the web.
www.NicholsTrialLaw.com 1.800.906.5984

Medicaid: "Ahlborn hearings" are back thanks to the 2018 federal budget which makes Medicaid provide lien reduction hearings again. But watch the deadlines!

I'll put the most important thing first, then explain it.  This is just my opinion, and applies only to North Carolina law, but since deadlines may be running, I wanted to get it out there.
 
If you settled a case (by minor settlement, signed release, or Industrial Commission approval) in which Medicaid claimed a lien, between October 1, 2017 and February 9, 2018, you have 30 days from February 9 to file a motion in Superior or District court to seek a reduction of the lien under NCGS 108A-57.  30 days runs on the weekend of March 10-11, so calendar that for Friday March 9, 2018 (unless you want to play chicken with the weekend rule).  Example:  You settled a claim on October 15, 2017 that had a Medicaid lien that exceeded 1/3 of the settlement. You paid Medicaid 1/3 of their lien (or held the money) because there was no longer a statutory mechanism to reduce the lien.  You now have until March 9, 2018 to file a motion to reduce Medicaid's lien.
Let's define "settled" since that is the event that triggers the 30 day time limit to file the motion. Medicaid defines "settled" as:
        1)  The date upon which all parties execute a full Release of Claims; or,
        2)  For a minor, the date upon which the settlement is approved in a minor settlement hearing; or,
        3)  For a case in litigation that is tried, the date upon which Judgment is entered, or,
        4)  For a Workers Compensation case, the date upon which the Clincher is approved.
 
In addition to cases "Settled" during the period of October 1, 2017 and February 9, 2018, if you had a claim that settled up to 29 days before October 1, 2017, you may still have time to file for the lien reduction.  I can't tell you if you get only the remaining time you had left as of October 1, 2017, or if you get until March 9, 2018. Play it safe and choose the shorter time and file. Example:  You settled a claim on September 15, 2017.  Your 30 day window to file a motion for reduction would have run on Sunday, October 15, 2017.  But because federal law and state law changed on October 1, 2017, you could not file for a hearing.  I think, in the most conservative view, you now have the remainder of the time you would have had after and including October 1. And that remaining time begins to run again starting February 9, 2018.  October 1 to October 15 is 15 days.  February 9, 2018 plus 15 days is Saturday, February 24, 2018.  You would need to FILE the motion before February 24, 2018.  Think of it as a statute of limitations which is stayed because a person goes into a coma and becomes incompetent, but then they regain consciousness 5 months later and the statute starts ticking again where it left off.
 
Below I set out the history on this and then pose some questions you might have.  Pay attention to the part where we discuss what happens if you paid Medicaid from October 1, 2017 until February 9, 2018.  You may have an obligation to ask for a refund.
 
How did this get so screwed up, and what's Medicaid subrogation?
Up until 2006, the law was clear that NC Medicaid was entitled to 100% of their lien, not to exceed 1/3 of a settlement, prorated with medical providers who had valid liens.
 
In 2006, SCOTUS ruled in Arkansas v. Ahlborn that state medicaid subrogation statutes could not just set a percentage recovery of the settlement as the amount of subrogation and ingnore the relationship between the gross settlement, the client's recovery and the amount claimed in the medicaid lien. Ahlborn said states had to allow for a hearing mechanism for courts to set the lien in light of the recovery amount and how much of the recovery was for medical treatment as a proportion to the whole recovery.  Most states revised their Medicaid subrogation statues in 2006 and started to allow hearings to reduce Medicaid recovery.  They called them "Ahlborn hearings."
 
North Carolina did NOT follow Ahlborn. Much to everyone's frustration.
 
Several lawyers in NC challenged Medicaid's refusal to follow SCOTUS' ruling in Ahlborn.  All of the state actions challenging Medicaid's refusal failed in our appellate courts.
 
Then in April of 2013 SCOTUS issued an opinion in Wos v. E.M.A., upholding a 4th Circuit opinion (coming from North Carolina), and declaring that the North Carolina medicaid lien statute was in violation of the court's ruling Ahlborn.   By July of 2013, NCAJ had negotiated changes to the Medicaid lien statute to bring it into compliance with Wos and Ahlborn and provide a statutory mechanism to request a lien reduction hearing.  Those hearings need to be requested (i.e., filed with a court) within 30 days of the settlement (defined by the signing of a Release or a minor settlement or Industrial Commission approval).  This is the statute that was passed:  NCGS 108A-57
 
Finally, NC was compliant with Ahlborn and the few others states that ignored Ahlborn were changing too.  Meanhwile, in December of 2013, Congress was battling with President Obama to pass the first budget in years.  In October of that year, Congress allowed the government to shut down for 16 days until they passed a temporary continuing funding resolution. On December 26, 2013, Congress (to the surprise of many) passed the Bipartisan Budget Act of 2013.  Not until after it was signed into law did anyone notice this section:
 

SEC. 202. STRENGTHENING MEDICAID THIRD-PARTY LIABILITY.

(b) RECOVERY OF MEDICAID EXPENDITURES FROM BENEFICIARY

LIABILITY SETTLEMENTS.— (1) STATE PLAN REQUIREMENTS.—Section 1902(a)(25) of the Social Security Act (42 U.S.C. 1396a(a)(25)) is amended— (A) in subparagraph (B), by striking ‘‘to the extent of such legal liability’’; and (B) in subparagraph (H), by striking ‘‘payment by any other party for such health care items or services’’ and inserting ‘‘any payments by such third party’’. (2) ASSIGNMENT OF RIGHTS OF PAYMENT.—Section 1912(a)(1)(A) of such Act (42 U.S.C. 1396k(a)(1)(A)) is amended by striking ‘‘payment for medical care from any third party’’ and inserting ‘‘any payment from a third party that has a legal liability to pay for care and services available under the plan’’.(3) LIENS.—Section 1917(a)(1)(A) of such Act (42 U.S.C. 1396p(a)(1)(A)) is amended to read as follows: ‘‘(A) pursuant to— ‘‘(i) the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or‘‘(ii) rights acquired by or assigned to the State in accordance with section 1902(a)(25)(H) or section 1912(a)(1)(A), or’’.EFFECTIVE DATE.—The amendments made by this section shall take effect on October 1, 2014.

 
The very small change to the subrogation language in federal law had the effect of rendering Ahlborn and Wos moot as both cases depended on the specific language  which said "payment by any other party for such health care items or services" and  "payment for medical care from any third party" as the basis for the court's reasoning that Medicaid must, for lack of a better term, prorate settlement funds with the victim of negligence.
 
I called several members of Congress and found out that the provisions had been slipped in at the last minute and had been pushed by private third-party subrogation companies like Rawlings and HMS who are contractors for many state Medicaid offices.  Because these private companies take a percentage of recoveries they recover for the statse, they did not want to have payments to Medicaid (and their profits) lowered in favor of injured victims.
 
The statute changes did not go into effect until October of 2014, and under pressure from consumer groups, advocates for the disabled, and AAJ, the effective date was pushed to October of 2016.  Then as we got closer to October of 2016, it was pushed to October of 2017. Victims of negligence who faced massive injuries with small liability policies were receiving relief from unwieldy Medicaid liens.  Injured Plaintiffs could then use those funds to pay for services that Medicaid would not cover for the disabled Plaintiffs. Additionally, Medicaid was still prorating their recovery with valid medical lien holders under NCGS 44-49.
 
Meanwhile, in 2017, with a new Congress and new President, the North Carolina legislature inserted a change to NCGS 108A-57 in the July 2017 Budget (Senate Bill 257). The changes included a complete re-write of NCGS 108A-57, which eliminated a lien reduction hearing, re-instituted the 1/3 cap on Medicaid recovery (the Plaintiff repaid Medicaid 100% of the lien up to 1/3 of the gross settlement) and the proration with unpaid medical providers with valid liens was eliminated.
 
This new law only went into effect IF the federal changes from 2013 went into effect on October 1, 2017.  The prelude to the change in NC law was a classic "IF/THEN" proposition (highlight added):
 

NC Senate Bill 257

MEDICAID SUBROGATION RIGHTS CONFORMING CHANGES

 SECTION 11H.23. If Section 202(b) of the Bipartisan Budget Act of 2013, P.L. 113-67, takes effect on October 1, 2017, as provided in Section 202(c) of that act, as amended by Section 211 of the Protecting Access to Medicare Act of 2014, P.L. 113-93, and Section 220 of the Medicare Access and CHIP Reauthorization Act of 2015, P.L. 114-10, then G.S. 108A-57 reads as rewritten:

"§ 108A-57. Subrogation rights; withholding of information a misdemeanor.

(a) As used in this section, the term "beneficiary" means (i) the beneficiary of..... (then went on to rewrite the subrogation statute)

 
 
Consumer lobbying groups were unable to persuade Congress and HHS to delay the implementation of the October 1, 2017 changes, and therefore NC law changed on October 1, 2017 pursuant to the "IF/THEN" portion of the statute.
 
Which brings us to February 9, 2017. As many of you will recall, after a brief shut down of the US government from midnight of February 8 to the early hours of February 9, Congress passed and the President signed  H.R.1892 - Bipartisan Budget Act of 2018.  
 
Thanks to consumer lobbying by AAJ and other disability advocacy groups, the new federal budget repealed the changes to Medicaid law in the 2013 budget as follows:
 

H.R.1892 - BIPARTISAN BUDGET ACT OF 2018

SEC. 53102. THIRD PARTY LIABILITY IN MEDICAID AND CHIP.

(b) Delay In Effective Date And Repeal Of Certain Bipartisan Budget Act Of 2013 Amendments.—

(1) REPEAL.—Effective as of September 30, 2017, subsection (b) of section 202 of the Bipartisan Budget Act of 2013 (Public Law 113–67; 127 Stat. 1177; 42 U.S.C. 1396a note) (including any amendments made by such subsection) is repealed and the provisions amended by such subsection shall be applied and administered as if such amendments had never been enacted.

(2) [Does not apply to subrogation]

(3) EFFECTIVE DATE; TREATMENT.—The repeal and amendment made by this subsection shall take effect as if enacted on September 30, 2017, and shall apply with respect to any open claims, including claims pending, generated, or filed, after such date. The amendments made by subsections (a) and (b) of section 202 of the Bipartisan Budget Act of 2013 (Public Law 113–67; 127 Stat. 1177; 42 U.S.C. 1396a note) that took effect on October 1, 2017, are null and void and section 1902(a)(25) of the Social Security Act (42 U.S.C. 1396a(a)(25)) shall be applied and administered as if such amendments had not taken effect on such date.

So where does this leave us?

 
Based upon the language of the Bipartisan Budget Act of 2018, the changes to the key language which vitiated Ahlborn and Wos in 2013 and went into effect on October 1, 2017, are now a nullity.  According to the newest federal law, the changes in 2013 were never put into effect on October 1, 2017, because they were repealed on September 30, 2017.
 
And because Section 202(b) of the Bipartisan Budget Act of 2013, did not take effect on October 1, 2017, there is no change to NCGS 108A-57, the Medicaid subrogation statute.
 
Which means that 108A-57's requirements to request a lien reduction hearing are still in effect. NCGS 108A-57requires:
 
(a2)      A medical assistance beneficiary may dispute the presumptions established in subsection (a1) of this section by applying to the court in which the medical assistance beneficiary's claim against the third party is pending, or if there is none, then to a court of competent jurisdiction, for a determination of the portion of the beneficiary's gross recovery that represents compensation for the Medicaid claim. An application under this subsection shall be filed with the court and served on the Department pursuant to the Rules of Civil Procedure no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court, or in cases in which judgment has been entered, no later than 30 days after the date of entry of judgment. The court shall hold an evidentiary hearing no sooner than 30 days after the date the action was filed. All of the following shall apply to the court's determination under this subsection:
 
So what is the deadline to file for 108A-57 hearings to reduce Medicaid's lien for cases settled from October 1, 2017 to February 9, 2018?
 
The way the federal changes were implemented on February 9, 2018 leaves a vacuum from October 1, 2017 until February 9, 2018 for all settlements where Medicaid claimed a lien on settlement proceeds.  Obviously, during that time period, a Plaintiff had no statutory mechanism to file for a Medicaid reduction hearing under NCGS 108A-57.  So there can be no 30 day time limit to file during those months.
 
So what happens to Plaintiff cases that settled (by release, minor settlement of Industrial Commission Order) from October 1, 2017 until February 9, 2018?
 
The only logical conclusion is that the 30 day time limit to file a motion for Medicaid lien determination for cases settled from October 1, 2017 through February 9, 2018,  begins on February 9, 2018 and runs 30 days until and including Friday March 9, 2018 (or Monday March 12, 2018 if you want to use the "weekend rule", but why risk it?).
 
This means that if you settled a case during that time, you MUST file,"by applying to the court in which the medical assistance beneficiary's claim against the third party is pending, or if there is none, then to a court of competent jurisdiction, for a determination of the portion of the beneficiary's gross recovery that represents compensation for the Medicaid claim. An application under this subsection shall be filed with the court and served on the Department pursuant to the Rules of Civil Procedure no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court, or in cases in which judgment has been entered, no later than 30 days after the date of entry of judgment."
 
Practically, this means you need to file a motion for determination if you have a case pending, and if you don't, you will need to file a Complaint in the underlying action and include a motion to determine Medicaid's lien. 
 
What if I had a case settle less than 30 days before October 1, 2017, but I didn't get a motion filed before October 1, 2017?
 
I think that the most conservative approach would be that you get whatever time you had left in your 30 day time limit added on beginning February 9, 2018.  So if 25 days had gone past from the settlement of your case in September of '17 when October 1 happened, you would get 5 more days to file, beginning February 9, 2018 and ending February 13 (or maybe 14th depending on how you count it).
 
What if I paid Medicaid 100% or 1/3 of the settlement from October 1, 2017 through February 9, 2018?
 
If you paid Medicaid during the "vacuum time" of October 1, 2017 through February 9, 2018, I think you have a 30 day window to request a hearing to have the lien payment evaluated by a court.  I would assume that if you convinced the Judge that your client did not need to pay the Medicaid lien 1005 of 1/3 of the settlement, that the Judge could order Medicaid to issue a refund for the overpayment.  Also keep in mind that Medicaid now has to pro-rate with unpaid medical providers with valid liens.
 
What if I paid Medicaid 100% or 1/3 of the settlement from October 1, 2017 through February 9, 2018 and I'm ok with the amount BUT I wasn't able to pay valid medical lien holders because Medicaid would no pro-rate under the revised statute in effect at that time?
 
This is a harder question.  Before October 1, 2017, you could tell Medicaid you had valid lien holders, prove that with copies of the liens, and reduce Medicaid's lien by the prorated amounts of the medical lien holders.  You didn't need a hearing to make Medicaid prorate.  It was by operation of law in all scenarios where you pay subrogation:.
 

NCGS 108A-57

(a5)      The medical assistance beneficiary or any attorney retained by the beneficiary shall, out of the proceeds obtained by or on behalf of the beneficiary by settlement with, judgment against, or otherwise from a third party by reason of injury or death, distribute to the Department the amount due pursuant to this section as follows:

(1)        If, upon the expiration of the time for filing an application pursuant subsection (a2) of this section, no application has been filed, then the amount presumed pursuant to subsection (a1) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the beneficiary's receipt of the proceeds, in the absence of an agreement pursuant to subsection (a3) of this section.

(2)        If an application has been filed pursuant to subsection (a2) of this section and no agreement has been reached pursuant to subsection (a3) of this section, then the Department shall be paid as follows:

a.         If the beneficiary rebuts the presumption arising under subsection (a1) of this section, then the amount determined by the court pursuant to subsection (a2) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the entry of the court's order.

b.         If the beneficiary fails to rebut the presumption arising under subsection (a1) of this section, then the amount presumed pursuant to subsection (a1) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the entry of the court's order.

(3)        If an agreement has been reached pursuant to subsection (a3) of this section, then the agreed amount, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the execution of the agreement by the medical assistance beneficiary and the Department.

 
I do not think the 30 day deadline to file a motion applies to this situation if you have already paid Medicaid.
 
I think you should only have to write a letter to HMS/Medicaid, show them what you paid, prove that there were valid liens when you overpaid Medicaid, and ask that Medicaid refund the portion of the proceeds which should have been paid to valid medical lien holders. I don't know if Medicaid would want to make that check payable to your client (I'm guessing they will want to do that), or to the medical providers.  Then it would be up to you to distribute the funds.
 
Practically, if you had the valid medical liens during this time, you need to notify your client of the changes in the law and that the client has the option of having you ask Medicaid to make a refund that will be paid toward their unpaid medical balances.
 
But wait, I paid Medicaid on some liens from October of 2017 until February of 2018.  I don't think those cases needed a lien reduction hearing. Do I HAVE to look back and see if any of those files had valid medical liens that should (had the law allowed at the time) have been prorated with Medicaid?
 
Do you HAVE to ask for a refund of the (now) overpayment to Medicaid when there were valid medical provider?  Probably so. 
 
Why?  You have a legal duty pursuant to NCGS 44- 49 and 50, and now an ethical duty, pursuant to 2017 Formal Ethics Opinion 4,  to honor valid medical provider liens, regardless of the client's desires.  When you combine your duty to pay a valid medical lien under NCGS 44-49 and 50 with the ethical duty imposed to honor valid legal liens, I think you have to go back and look at any Medicaid payments you made from October 1, 2017 until February 9, 2018.
 
In summary, this is all great news for Plaintiffs, but we have to watch the potential deadline issues!
 
Questions?  Feel free to email at Chris@NicholsTrialLaw.com
 
Chris Nichols
 
www.NicholsTrialLaw.com 1.800.906.5984

Easy link to all Trial Court Administrator and Coordinator emails in North Carolina

The NC AOC (Administrative Office of the Courts) website is often hard to navigate and because it is open to the general public, can be sparse on the email links.

 

This can make scheduling trials and motions difficult.

Here is a link to the names, adresses and emails of the TCAs and TCCs in North Carolina:

http://www.nccourts.org/Courts/CRS/Councils/DRC/Documents/MSCCourtContacts.pdf

 

Chris Nichols

www.NicholsTrialLaw.com 1.800.906.5984

Last week was an exciting week at the Nichols Law Firm as I (Chris Nichols) assumed the presidency of the North Carolina Advocates for Justice.  NCAJ is one of the largest state trial lawyer's associations in the United States.

My law school covered the event.

 

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Is there a statute of limitations on ERISA subrogation claims?

I am often asked the question, "Is there a statute of limitations on ERISA subrogation claims."  Most often, this question arises when a claim is settled and the lawyer had no knowledge of any ERISA subrigation rights and months or years later the lawyer receives a letter from a subrogation collection company.

Like so many legal questions, the answer is "maybe."  Possibly the better answer is, "you are best off to not ever have to ask this question."

The reason for the later response is that the law is very unclear on when the statute of limitations begins to run on an ERISA subrogation claim.  Obviously, if the Plan language sets out a clear statute for collecting on the claim, the answer may be easier, but I can't think of a Plan that has ever clearly set a statute within the subrogation language.

Because of that, the lawyer is left trying to reconcile federal ERISA law with state statutes of limitations and also to attempt to determine who had what notice of the insurance claim and when.

 

Professor Baron, one of the undisputed experts on ERISA law, wrote an excellent article setting out the case law on SOL issues in ERISA claims.  I highly recommend you read this article:  http://erisawithprofessorbaron.com/wp-content/uploads/Defeating-an-ERISA-Lien-with-the-Statute-of-Limitations.pdf

Professor Baron's website is treasure trove of good information on ERISA law:  http://erisawithprofessorbaron.com/

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984