Thursday, April 29, 2010

Does Medicaid Have A Right Of Subrogation On The Wrongful Death Claim?

I represent the children of an older gentleman who died after sustaining serious bodily injuries in Texas. We put the insurance company on notice of a wrongful death claim which they settled. We did not bring a survivorship claim. Does Medicaid have a right of subrogation on the wrongful death claim?

Texas Attorney

We appreciate you reaching out to us with your question. Texas Medicaid's right of recovery is found at VTCA HRC §32.033 (see below). Texas Medicaid may have a right of recovery for the decedent's injury related care for which they paid. Additionally, they may have a Medicaid Estate Recovery claim for expenditures unrelated to the injury.

Please let me know if we can be of further assistance with either of these potential obligations.

My best,
Elizabeth Vish

Sec. 32.033. SUBROGATION. (a) The filing of an application for or receipt of medical assistance constitutes an assignment of the applicant's or recipient's right of recovery from:

(1) Personal insurance;

(2) Other sources; or

(3) Another person for personal injury caused by the other person's negligence or wrong.

(b) A person who applies for or receives medical assistance shall inform the department, at the time of application or at any time during eligibility and receipt of services, of any unsettled tort claim which may affect medical needs and of any private accident or sickness insurance coverage that is or may become available. A recipient shall inform the department of any injury requiring medical attention that is caused by the act or failure to act of some other person. An applicant or a recipient shall inform the department as required by this subsection within 60 days of the date the person learns of his or her insurance coverage, tort claim, or potential cause of action. An applicant or a recipient who knowingly and intentionally fails to disclose the information required by this subsection commits a Class C misdemeanor.

(c) A claim for damages for personal injury does not constitute grounds for denying or discontinuing assistance under this chapter.

(d) A separate and distinct cause of action in favor of the state is hereby created, and the department may, without written consent, take direct civil action in any court of competent jurisdiction. A suit brought under this section need not be ancillary to or dependent upon any other action.

(e) The department's right of recovery is limited to the amount of the cost of medical care services paid by the department. Other subrogation rights granted under this section are limited to the cost of the services provided.

(f) The commissioner may waive the department's right of recovery in whole or in part when the commissioner finds that enforcement would tend to defeat the purpose of public assistance.

(g) The department may designate an agent to collect funds the department has a right to recover from third parties under this section. The department shall use any funds collected to pay costs of administering the medical assistance program.

(h) The department may adopt rules for the enforcement of its right of recovery.