Wyo. Code R. 048-0037-35
Medicaid
Chapter 35: Medicaid Benefit Recovery
Effective Date: 10/27/1995 to 10/15/1999
Rule Type: Superceded Rules & Regulations
Reference Number: 048.0037.35.10271995
This Chapter is promulgated by the Department of Health pursuant to the Medical Assistance and Service Act of 1967, as amended (W.S. § 42-4-101 et seq.) and the Wyoming Administrative Procedures Act, as amended (W.S. § 16-3-101 et seq.).
(a) This Chapter and Chapter 4 shall apply to and govern all issues of Medicaid benefit recoveries and third party liability.
(b) The Department may issue Manuals or Bulletins to providers, and other affected third parties to interpret the provisions of this Chapter. Such Manuals or Bulletins shall be consistent with and reflect the policies contained in this Chapter. The provisions contained in Manuals or Bulletins shall be subordinate to the provisions of this Chapter.
(a) This Chapter is intended to implement and to be read in conjunction with Wyo. Stat. §§ 42-4-109, 42-4-201 et seq., applicable federal law, including OBRA '90 and OBRA '93, and Chapter 4.
(b) Terminology. Except as otherwise specified, the terminology used in this Chapter is the standard terminology and has the standard meaning used in accounting, health care, Medicaid and Medicare.
(a) 'Administrator.' The administrator of the Division, the administrator's agent, designee or successor.
(b) 'Applicant.' A person who has submitted a written application for Medicaid, either directly or through a representative acting on his or her behalf, which has not received final action.
(c) 'Application.' An applicant's written request for Medicaid.
(d) 'Assignment of benefits.' The transfer from an applicant or recipient to the Department of the applicant's or recipient's rights to medical support or payments for services from any third party payer.
(e) 'Attorney general.' The Attorney General of the State of Wyoming, his agent, designee or successor.
(f) 'Cause of action.' The right or potential right of a recipient, or someone acting on behalf of a recipient, to recover from a third party payer.
(g) 'Chapter I.' Chapter I, Rules for Medicaid Administrative Hearings, of the Wyoming Medicaid Rules.
(h) 'Chapter 3.' Chapter 3, Provider Participation, of the Wyoming Medicaid Rules.
(i) 'Chapter 4.' Chapter 4, Third Party Liability, of the Wyoming Medicaid Rules.
(j) 'Claim.' A request by a provider for Medicaid payment for services provided to a recipient.
(k) 'Cost-effective.' The determination by the Division that the expected expenses of a recovery, including, but not limited to, administrative costs, attorneys' fees, court costs, costs of litigation, travel costs, expert witness fees and deposition expenses, are less than the expected amount of the recovery.
(l) 'Costs.' Reasonable out-of-pocket costs incurred by an attorney in the prosecution of a cause of action, including, but not limited to, court costs, costs of litigation, travel costs, expert witness fees and deposition expenses.
(m) 'Department.' The Wyoming Department of Health, its agent, designee or successor.
(n) 'DFS.' The Wyoming Department of Family Services, its agent, designee or successor.
(o) 'Director.' The Director of the Department of Health, the director's agent, designee or successor.
(p) 'Division.' The Division of Health Care Financing of the Department of Health, its agent, designee or successor.
(q) 'Estate.' 'Estate' as defined by W.S. § 42-4-206(g)(ii), which is incorporated by this reference.
(r) 'Estate recovery.' The recovery by the Department of Medicaid payments made to or on behalf of a recipient from the estate of a deceased recipient.
(s) 'HCFA.' The Health Care Financing Administration of the U.S. Department of HHS.
(t) 'Home.' A recipient's primary residence at the time the recipient enters an institution.
(u) 'Institution.' A hospital, nursing facility, intermediate care facility for the mentally retarded (ICF/MR) or any other provider which is an 'institution' as defined by 42 C.F.R. § 435.1009, which definition is incorporated by this reference.
(v) 'Institutional provider.' An institution which is a Medicaid provider.
(w) 'HHS.' The United States Department of Health and Human Services.
(x) 'Lien.' A lien filed pursuant to W.S. § 42-4-202 or W.S. § 42-4-207.
(y) 'Local agency.' The county field office of DFS, its agent, designee or successor.
(z) 'Medicaid.' Medical assistance and services provided pursuant to Title XIX of the Social Security Act, as amended, and the Wyoming Medical Assistance and Services Act, as amended.
(aa) 'Medicaid benefit recovery.' The recovery by the Department from a recipient or a third party payer of Medicaid funds paid to or on behalf of a recipient. 'Medicaid benefit recovery' includes estate recovery and/or the foreclosure of a lien.
(bb) 'Medicare.' The health insurance program for the aged and disabled established pursuant to Title XVIII of the Social Security Act.
(cc) 'Medicare crossover claim.' A claim for services provided to a recipient who is eligible for Medicare and Medicaid.
(dd) 'Non-probate estate.' That portion of a recipient's estate which is not administered pursuant to the Wyoming Probate Code.
(ee) 'OBRA '90.' The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508
(ff) 'OBRA '93.' The Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66.
(gg) 'Probate estate.' That portion of a recipient's estate which is administered pursuant to the Wyoming Probate Code.
(hh) 'Provider.' A provider as defined by Chapter 3, which definition is incorporated by this reference.
(ii) 'Recipient.' A person who has been determined eligible for Medicaid or a person formerly eligible for Medicaid on whose behalf the Medicaid program has made or is obligated to make payments of Medicaid funds. 'Recipient' includes a guardian, conservator or other legal representative acting on behalf of a recipient.
(jj) 'Recipient's gross recovery.' The total present value of a judgment or settlement arising out of a cause of action.
(kk) 'Rules governing contingent fees.' The Rules Governing Contingent Fees for Members of the Wyoming State Bar, as promulgated by the Supreme Court, State of Wyoming.
(ll) 'Services.' Goods or services authorized for Medicaid payments under applicable federal law, W.S. § 42-4-103 and the rules of the Department.
(mm) 'Settlement.' An agreement under which a third party payer agrees to make payment to a recipient or third party for an illness, injury, or disability which has required services for which the Department has made or is or becomes obligated to make Medicaid payments to or on behalf of the recipient.
(nn) 'Structured settlement.' A settlement under which more than one payment of money or benefits will be made. 'Structured settlement' includes any payment schemes with more than one payment, regardless of the number of payments, the amount of the payments, the periodicity of the payments or the reason for the payments.
(oo) 'Subrogation.' The succession of the Department to the rights of a recipient with respect to third party payers.
(pp) 'Third party liability.' The right of a recipient to recover from a third party payer the costs of Medicaid services furnished to the recipient.
(qq) 'Third party payer.' A person, entity, agency, or government program that may be liable to pay, or that pays all or part of the costs of services provided to a recipient. 'Third party payer' includes, but is not limited to, Medicare, insurance companies, workers' compensation, defendants or potential defendants in legal actions involving recipients or an individual or entity acting on behalf of a recipient, a spouse or parent who is obligated by law or court order to pay all or part of such costs, or a recipient's estate. 'Third party payer' also includes an individual or entity liable pursuant to this Chapter and/or Chapter 4.
(rr) 'Undue hardship.' An undue hardship exists if the decedent's home is part of the estate and that home is part of a business, including a working farm or ranch, and recovery of the home would result in the heirs or beneficiaries losing their means of making a living. 'Undue hardship' includes any additional definition promulgated by HHS as an administrative regulation. Any part of this definition that is inconsistent with HHS's definition shall become inoperative.
(ss) 'Working day.' Monday through Friday, exclusive of State holidays.
(i) Automatic assignment of benefits. By signing an application, an applicant makes an assignment of benefits to the Department on the applicant's behalf and on behalf of any relative for whom application is made.
(ii) Effective dates of assignment of benefits. The assignment of benefits is effective upon a determination of eligibility and remains in effect with respect to services provided during the period of eligibility for Medicaid, including any period of retroactive eligibility.
(b) Payer of last resort. Medicaid will pay for services only after all sources of third party liability have been exhausted, except as provided by 42 U.S.C. § 1396d(b) and Title V of the Social Security Act.
(c) Recovery of payments from third party payers. If the Department pays or is or becomes obligated to pay Medicaid funds to or on behalf of a recipient because of an injury, illness or disability for which a third party payer is or becomes liable, the Department may recover the full amount of such Medicaid funds from the third party payer to the extent of such payer's liability to the recipient.
(d) Estate recoveries. If the Department pays or is or becomes obligated to pay Medicaid funds to or on behalf of a recipient because of an injury, illness or disability, the Department may recover the full amount of such Medicaid funds from the estate of the deceased recipient.
(a) The duties of applicants, recipients and providers are set forth in Chapter 4, and are incorporated by this reference.
(b) Notification of death.
(i) An institutional provider shall notify the Division, in writing, of the death of any recipient which occurs in the facility.
(ii) Time of notice. The notification shall be mailed to the Department on or before the end of the third working day after the recipient's death.
(iii) Contents of notice. The notification shall be in the form and contain the information required by the Division.
(c) Reporting requirements. If the plaintiff and/or the defendant are not represented by an attorney, the reporting requirements of Section 7 shall apply to the plaintiff and/or the defendant.
(a) Reporting requirements. In a cause of action in which Medicaid has made or is obligated to make payments for services resulting from an injury, illness or disability involved in the cause of action,
(i) The attorney for the plaintiff shall serve the Department with a copy of the complaint by certified mail, return receipt requested, within one working day after filing the complaint; and
(ii) The attorney for the plaintiff and the attorney for the defendant(s) shall:
(A) Notify the local agency and the Department, in writing, by certified mail, return receipt requested, of any settlement or judgment pursuant to which the recipient and/or a third party receives or is to receive any benefits;
(B) Make the Wyoming Attorney General, representing the Director of the Department, a party to any negotiations involving settlement, compromise or release; and
(C) Comply with the requirements of this Chapter before disbursing any benefits.
(b) Before or at the time of disbursing funds to a recipient and/or attorney's fees, the attorney acting on behalf of the recipient shall submit to the Department:
(i) A Statement of Net Recovery Distribution substantially in the form specified in
Attachment IV to the rules governing contingent fees; and
(ii) Payment of the Department’s portion of the recovery.
(c) Failure to comply. An attorney who fails to comply with this Chapter is subject to the provisions of Section 8(j).
(a) The Department may seek Medicaid benefit recovery pursuant to the procedures and standards of W.S. § 42-4-201 et seq., which is incorporated by this reference, and applicable federal law.
(i) If the Department files a lien against the real property of a recipient pursuant to W.S. § 42-4-207(c), it shall provide notice to the recipient of the recipient’s right to request a hearing to determine whether the recipient cannot reasonably be expected to return home.
(ii) Request for hearing. A request for a hearing pursuant to paragraph (i) shall be mailed to the Department by certified mail, return receipt requested, within thirty days of the date the recipient receives notice. Such request shall state with specificity the basis for asserting that the recipient can reasonably be expected to return home.
(iii) Hearing procedures. A hearing pursuant to this Section shall be conducted in accordance with the provisions of Chapter I, which are incorporated by this reference.
(b) Additional duties. In addition to the requirements of subsection (a), subsections (c) through (k) shall apply to Medicaid benefit recovery.
(c) The Division may not agree to a settlement which involves the compromise or release of any portion of the federal medical assistance percentage, except as allowed by federal law.
(d) Amount of the Department’s recovery. Except as provided in paragraph (ii), the Department shall recover the full amount of Medicaid funds paid to or on behalf of the recipient because of the injury, illness or disability involved in the cause of action.
(i) If the recipient’s net recovery is greater than or equal to the Medicaid funds paid to or on behalf of the recipient, the Department shall recover the full amount of the Medicaid funds.
(ii) If the recipient’s net recovery is less than the Medicaid funds paid to or on behalf of the recipient, the Department shall recover the full amount of the recipient’s net recovery unless the Department agrees in writing to compromise or release part of its claim because recovering the recipient’s entire net recovery would result in an unreasonable hardship to the recipient. For purposes of this paragraph, “unreasonable hardship” means that the recipient would be deprived of necessary food, shelter or medical care.
(e) Determination of recipient’s net recovery. The recipient’s net recovery shall be:
(i) The recipient’s gross recovery, minus (ii) The necessary costs incurred in pursuing the judgment or settlement, minus
(iii) Attorney’s fees not to exceed one-third of the amount determined by subtracting (ii) from (i).
(f) The allocation of payments. The allocation of payments in a settlement agreement between medical expenses and/or any other category of payments shall have no effect on the State’s right to recover the full amount of Medicaid funds paid to or on behalf of a recipient.
(g) Structured settlements. If the recipient enters into a structured settlement under which the initial payment to the recipient is insufficient to reimburse the Department in full for all Medicaid payments made or to be made on behalf of the recipient for such illness, injury or disability, the recipient shall pay the Department all funds received in each installment until the Department is paid in full.
(h) Medicaid payments after settlement. Except as otherwise provided in a settlement agreement approved pursuant to this Chapter, the settlement of a claim does not preclude the Department from seeking Medicaid benefit recovery for Medicaid payments made after the date of such settlement.
(i) The Department’s right to recover from a third party payer, a provider, a recipient or a recipient’s attorney.
(i) Right to recover.
(A) The Department shall have the right to recover directly from a third party payer to the extent of Medicaid funds paid or to be paid to a provider on behalf of a recipient when the existence and extent of liability of such payer is established.
(B) A third party payer which pays a provider, recipient or third party after notice that Medicaid has made payments to or on behalf of the recipient, remains liable to the Department for the full amount of Medicaid payments.
(C) The Department shall have the right to recover directly from a recipient who has received money from a third party payer to the extent of Medicaid funds paid or to be paid on behalf of such recipient for which the third party payer is liable.
(D) The Department shall have the right to recover directly from a provider which has received Medicaid funds paid on behalf of a recipient to the extent the provider has received payments from a third party payer for the same services.
(ii) Methods of recovery. The Department may attempt to recover Medicaid funds from a third party payer, a provider, a recipient or a recipient’s attorney by:
(A) Initiating a civil lawsuit against the third party payer, provider, recipient or recipient’s attorney;
(B) Reducing any future Medicaid payments to be made to the provider to the extent the provider has received payments from a third party payer for services for which Medicaid has also paid; or
(C) Any other method of collecting a debt or obligation permitted by law.
(j) Failure to comply.
(i) The failure of a recipient or recipient’s attorney to comply with this Chapter shall not affect the Department’s right to recover from the recipient to the extent of third party liability.
(ii) The failure of a recipient’s attorney to comply with this Chapter shall result in the Department having a claim against the attorney to the extent of third party liability.
(iii) The Division shall report the failure of an individual or entity to comply with this Chapter to the appropriate State and/or federal agency, entity or authority, including the Wyoming State Bar and/or the Wyoming Insurance Commissioner.
(a) Right to recover. The Department may make an estate recovery if the deceased recipient:
(i) Was fifty-five (55) years of age or older at the time the Department made payment of Medicaid funds to or on behalf of the recipient;
(ii) Has no surviving spouse;
(iii) Has no surviving child who is:
(A) Under twenty-one years of age; or
(B) Blind or permanently and totally disabled; and
(iv) Has no son or daughter who has been:
(A) Residing in the home continuously for two years or more immediately before the date of the individual’s admission to the institution; and
(B) Providing care which permitted the individual to reside at home rather than in an institution.
(b) Priority of estate claim. The Department’s claim shall be classified as an expense of last illness pursuant to W.S. § 42-4-206(b) for purposes of administration of the decedent’s estate.
(c) Procedures for recovery from probate estate.
(i) The Department shall be provided notice pursuant to S. § 2-7-205(a)(iii) if the Department made payment of Medicaid to or on behalf of the decedent.
(ii) The Department shall file its estate claim pursuant to W.S. § 2-7-701 et seq. of the Wyoming Probate Code.
(iii) Estate claims shall be administered and paid pursuant to the procedures and priorities of W.S. § 2-7-701 et seq. of the Wyoming Probate Code.
(d) Procedures for recovery from non-probate estate.
(i) The Department shall have the right to recover directly from a transferee or other individual or entity which has ownership of property from the non-probate estate of a deceased recipient.
(ii) Methods of recovery. The Department may recover from a third party by:
(A) Initiating a civil lawsuit against the third party payer; or
(B) Any other method of collecting a debt or obligation permitted by law.
(e) Filing lien. The Department may file a lien upon the real property of an individual pursuant to W.S. § 42-4-207(c). If the individual is a deceased recipient, the following procedures shall apply:
(i) The Department may conclusively presume that the individual could not be expected to return home;
(ii) The requirements for notice and an opportunity for a hearing to determine whether the individual may be expected to return home are waived; and
(iii) The Department may rely on information contained in the deceased recipient’s application for Medicaid to determine whether the home is occupied by any of the persons listed in W.S. § 42-4-207(d).
(iv) Any person who wishes to contest an action by the Department taken in reliance upon information contained in a deceased recipient’s application for Medicaid shall bear the burden of showing that the application contains erroneous information.
(a) If the Department determines that an estate recovery would be an undue hardship, the Department may waive part or all of the Department’s share of the amount which is recoverable pursuant to this Chapter.
(b) Notice of right to request undue hardship waiver. At the time the Department files an estate claim pursuant to Section 9(c) or initiates any action to collect from a non-probate estate pursuant to Section 9(d), it shall provide notice of the right to request an undue hardship waiver. Such notice shall be in writing, and shall:
(i) In the event of a probate recovery, be provided to the personal representative or administrator of the estate.
(ii) In the event of a non-probate recovery, be provided to the transferee or other individual or entity from whom recovery is sought.
(c) Request for undue hardship waiver.
(i) Any individual or entity which receives notice pursuant to subsection (b) may request an undue hardship waiver.
(ii) A request for an undue hardship waiver must be mailed to the Department by certified mail, return receipt requested, within thirty days of the date the individual or entity receives notice pursuant to subsection (b). The request must include documentation that the decedent’s home is part of the estate, that the decedent’s home is part of a business, including a working farm or ranch, and show that recovery of the home would result in the heirs or beneficiaries losing their means of making a living. The failure to provide the information required by this paragraph with the request shall result in the dismissal with prejudice of the undue hardship waiver request.
(d) Consideration of request. Upon receipt of a request for an undue hardship waiver, the Division shall consider whether the information furnished shows an undue hardship. The Division may request additional information before making a final decision. The Division’s decision shall be in writing, and shall be delivered by certified mail, return receipt requested. If the request is denied, the Division shall provide notice of the opportunity to request that the Department reconsider the decision.
(e) Reconsideration. A party may request that the Department reconsider a decision to deny an undue hardship waiver. Such request shall be made and shall be handled pursuant to the reconsideration provisions of Section 11.
(f) Burden of proof. The party opposing Medicaid benefit recovery shall bear the burden of showing an undue hardship by a preponderance of the evidence.
(g) The Department may elect not to pursue an estate recovery if it determines that it is not cost-effective to recover costs from the recipient’s heirs or beneficiaries.
(a) Request for reconsideration. A third party payer, provider, recipient or recipient’s attorney (“a party”) may request that the Department reconsider a decision to recover Medicaid benefits pursuant to this Chapter. Such request shall be mailed to the Department by certified mail, return receipt requested within twenty days of the date the individual or entity receives notice of the proposed recovery. The request shall state with specificity the reasons for the request. Failure to provide such a statement shall result in the dismissal of the request with prejudice.
(b) Reconsideration. The Department shall review the decision and send written notice of its final decision to the party that requested reconsideration by certified mail, return receipt requested, within forty-five days after receipt of the request for reconsideration or the receipt of any additional information requested pursuant to (c), whichever is later.
(c) Request for additional information. The Department may request additional information as part of the reconsideration process. Such a request shall be made in writing by certified mail, return receipt requested. The party from whom information is sought shall provide the requested information within thirty days after the date of the request. Failure to provide the requested information shall result in the dismissal of the request with prejudice.
(d) Reconsideration shall be limited to whether the Department has complied with the provisions of this Chapter.
(e) Informal resolution. The party requesting reconsideration or the Department may request an informal meeting before the final decision on reconsideration to determine whether the matter may be resolved. The substance of the discussions and/or settlement offers made pursuant to an attempt at informal resolution shall not be admissible as part a subsequent administrative hearing or judicial proceeding.
(f) Administrative hearing. A party may request an administrative hearing regarding the final decision pursuant to Chapter I of these rules by mailing by certified mail, return receipt requested or personally delivering a request for hearing to the Department. Such request shall be mailed or delivered within twenty days of the date the party receives notice of the final decision.
(g) Failure to request reconsideration. A party which fails to request reconsideration pursuant to this section may not subsequently request an administrative hearing regarding the decision to recover Medicaid benefits or the decision to deny an undue hardship waiver pursuant to Chapter I.
Section 12. Superseding Effect. This chapter supersedes all prior rules or policy statements issued by the Department, including Bulletins or Manuals, which are inconsistent with this Chapter.
Section 13. Severability. If any portion of this Chapter is found to be invalid or unenforceable, the remainder shall continue in full force and effect.