Detailed Answer
When you resolve a personal injury claim in West Virginia, both Medicaid and Medicare can seek repayment of medical expenses they paid on your behalf. These programs hold a statutory right—called subrogation or a lien—to recover funds from any third-party settlement, judgment, or award. Understanding these rules helps you estimate your net recovery and avoid unexpected reductions.
Medicaid Lien Rights in West Virginia
Under W. Va. Code § 9-5-22, the West Virginia Department of Health and Human Resources (DHHR) may file a lien against any settlement or judgment to recoup medical expenses paid through Medicaid. The department must notify you and your attorney of the lien amount.
West Virginia law also protects your access to non-medical damages. Under W. Va. Code § 9-5-23, DHHR must reduce its recovery proportionally by the percentage of attorney’s fees and litigation costs. For example, if your total settlement is $100,000, medical expenses paid by Medicaid are $40,000, and you pay 33% in attorney’s fees, Medicaid’s lien can be reduced by 33% (i.e., $13,200), leaving a net Medicaid claim of $26,800.
Medicare Secondary Payer Rules
Medicare operates under federal law known as the Medicare Secondary Payer (MSP) provisions. See 42 U.S.C. § 1395y(b). If Medicare pays medical bills related to your injury, it issues those payments on a “conditional” basis. You must notify the Centers for Medicare & Medicaid Services (CMS) of your claim and settlement. CMS will issue a Conditional Payment Report (CPR) identifying amounts it expects you to repay.
Typically, you request the CPR at least six months before settlement. Once you reach agreement, CMS will send a final demand letter. You must satisfy that demand from your settlement proceeds or negotiate a reduction through CMS’s dispute resolution process. Failing to address Medicare’s claim can lead to liens on your settlement or future benefits.
How Reimbursements Affect Your Settlement
- Reduction of Net Recovery: The total Medicaid lien plus any Medicare conditional payment must come out of your gross settlement before you receive funds.
- Negotiation Opportunities: Both DHHR and CMS allow you to dispute or reduce the amount they claim, especially if your recovery is small relative to medical bills.
- Timing Matters: Early notice to DHHR and CMS smooths the process and avoids last-minute demands that delay your settlement.
Helpful Hints
- Notify Medicaid early. Send a copy of your complaint or demand letter to West Virginia DHHR’s Office of Legal Services.
- Request a Medicare Conditional Payment Report (CPR) within 60 days of filing your claim via the CMS MSP portal.
- Track all medical bills paid by Medicaid or Medicare. Organize them by date of service and provider.
- Consider petitioning the circuit court to reduce an excessive Medicaid lien if it threatens your access to non-medical damages.
- Set aside sufficient funds to satisfy liens before disbursing the balance to clients or beneficiaries.
Disclaimer: This article provides general information about West Virginia law and federal rules. It does not constitute legal advice. To address your specific situation, consult a qualified attorney.