It’s not unusual for health insurers to deny coverage for procedures and medications which they deem “not medically necessary.”  Typically, this might start with a procedure which requires you to get advanced approval from the health insurance company.  Your doctor has probably submitted a request that the procedure be approved and your insurer has said that they do not believe the procedure or course of treatment is medically necessary.  At that point, you have to work through your own health insurer’s internal appeals process.

Exhaust your internal appeals

The internal appeals may be a single step or may be multiple steps.  Make sure you go through all levels of internal review, also known as “exhausting remedies.”  The appeal levels should be listed in your insurance contract or summary plan description.  If you don’t have a copy, make sure you request one from the insurer.

If you exhaust the appeals within your health insurance company, and you have a certain type of health plan coverage, you can request an “External review” through the NC Department of Insurance. External review is available for most health insurers that make coverage decisions based on medical necessity. Other types of denial decisions are not eligible for external review.

Medical necessity decisions made by North Carolina State Health Plan are also subject to external review.

External review through DOI not available on certain plans

The NC Department of Insurance says that “North Carolina’s state external review does not apply to self-funded employer health plans. (These are health plans for which an employer sets aside his own funds to pay for health claims rather than purchasing insurance, and are often “administered” by health insurance companies.) External review also does not apply to Medicare or Medicaid and is not available for certain types of insurance, including: dental, vision, Medicare supplement, long-term care, specified disease, workers compensation, credit, or disability income, or to medical payments under homeowners or auto insurance.”

If your plan allows for external review visit the NC Department of Insurance Website to request an External Review

The North Carolina Department of Insurance runs the external reviews.  They are available whether you have already received a service and coverage for it has been denied or you have requested and been denied coverage for a service that you have not yet received.

Most people will qualify for a standard external review, which results in a decision within 45 days of submitting a request for review. An expedited external review, under which a decision is made within three days of submitting a request, is available in cases where the time involved in obtaining a final decision can have an impact on a person’s health.

Yes, external review is free

There are no charges for the external review process. Hopefully, your medical providers will not charge you to fill in the forms for you saying the care was/is medically necessary.  Ask them when you send them the forms.  Usually they won’t, because if you win the external review, then the health insurance company must pay for the procedure.

You should request your external review within 90 days of the denial of service.

Here is the link to review the process at the NC Department of Insurance:

https://www.ncdoi.gov/consumers/health-insurance/health-claim-denied/request-external-review

Chris Nichols

Great questions! Some answers:

Back on Feb. 4, 2019, the North Carolina Department of Health and Human Services announced the selection of Prepaid Health Plans that will participate in Medicaid managed care when the program launches in November 2019. The Department awarded contracts to five entities:

• Statewide PHP contracts were awarded to the following entities which will offer Standard Plans in all regions in North Carolina:
  • AmeriHealth Caritas North Carolina, Inc.
  • Blue Cross and Blue Shield of North Carolina
  • UnitedHealthcare of North Carolina, Inc.
  • WellCare of North Carolina, Inc.
  • A regional PHP contract was awarded to Carolina Complete Health, a provider-led entity, which will offer plans in Regions 3 and 5.

Plaintiff lawyers who represent clients who are Medicaid recipients who have been in car wrecks need to track what these entities pay for medical treatment in order to account for the Medicaid lien and repay the government.

Before this privatization of Medicaid, all of the subrogation has been handled by a group called HMS. Now that the PHPs have come along, we have to request subrogation information from each PHP.

Here is a list of the subrogation contacts for the Medicaid PHPs.

PHP Medicaid Lien Contact Information

Carolina Complete Health

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

WellCare

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

Healthy Blue

 P.O. Box 659940
San Antonio, TX 78265-9939
Phone: 844-916-3651
Fax: 844-634-2520
Email: NCCompliance@healthybluenc.com

AmeriHealth

Attn: Subrogation Unit
200 Stevens Drive
Philadelphia, PA 19113
Phone:215-863-5837
Fax: 215-863-5221
Email: subrogation@amerihealthcaritas.com

United Healthcare

Optum Subrogation
11000 Optum Circle
Eden Prairie, MN 55344
Fax: 800-842-8810
Email: subrogationreferrals@optum.com

Trillium: www.trilliumnc.org 

Phone: 877-695-1296
Email: Trillium@gainwelltechnologies.com

_________

The subrogation providers above are subject to change, but this is the list as of 8/25/2022.

Chris Nichols
Nichols Law Firm
North Carolina and Raleigh Personal Injury Lawyer

In the midst of a health crisis in America, now is a great time to make sure that if crisis strikes, you can talk to your loved one’s medical team.

Now is a a GREAT time to do a living will (declaration for a natural death) and a health care power of attorney. Parents of 18 year olds- even if they act like kids, they are not in the eyes of the law. If your college freshman gets sick, you need a HIPAA release (at the very least) to get information.

So get some health care power of attorneys, HIPAA Forms, and other documents you need. The NC Secretary of State, Elaine Marshall, has most of the forms for free! They do not have to be formally registered, but you can register them with the Secretary of State for $10 for extra protection. Hospitals can check the registry. The forms do need to be notarized. Check with your bank about notarizing things. During Covid you can do some notary functions by video!

Here is a link to those NC Secretary of State free downloadable forms: https://www.sosnc.gov/divisions/advance_healthcare_directives?fbclid=IwAR0Gs6izQzGZ4mxaTcBVXUs8CqIJg5gCH-7cTejvUiqGPo3Pk5gbuOPPvZ4

A plain old HIPAA (medical release) form will allow doctors to talk and most hospitals won’t require it to be notarized.

Here is a generic HIPAA you can use that is “form fillable” as a PDF or printable. If you have a printer, I would actually print it out and fill it in by hand rather than use the electronic signature. But if you don’t have access to a printer, this should work too.

I’ve always found that the more I prepare for trial, the less likely I am to have a trial. So think of this as the lowest risk preventative medicine ever!

Note: these forms can be little complicated, so if you have questions, look for an estate planning lawyer near you. I don’t do that type of work, so I’m not your go-to person to answer specifics. 🙂

Chris Nichols, Attorney
Nichols Law Firm
From the home office

So what does happen when someone gets hurt or killed by a drunk driver in North Carolina?

First, let me make this clear: Nichols Law Firm only represents people injured or killed by drunk drivers. We never defend drunk drivers. When I teach a class to lawyers who defend drunk drivers, I’m teaching them the best ways to help my injured clients, which sometimes can be mutually beneficial to their client.

When a North Carolina drunk driver wrecks your car and injures you or your loved ones, we all hope that they are arrested at the scene. The arresting officer will do field sobriety tests, and if the driver does poorly on the tests, there will be probable cause to request a breath test for blood alcohol concentration. The drunk driver can refuse that test but the arresting officer can force a blood draw to get the results. Any blood alcohol concentration over .08% will result in an arrest for driving while intoxicated. Some refer to that simply as DWI or DUI.

Is a personal injury claim against a drunk driver any different from a regular personal injury claim?

A personal injury case against a drunk driver is pretty similar to one against a non-drunk driver. An adjuster from the drunk driver’s insurance company will want to take a recorded statement from you over the phone. They may ask you about all the ways you think the driver was intoxicated. It’s really important to get that right and make sure that you tell them all the signs of intoxication you saw: glassy eyes, smell of alcohol, unsteady on feet, slurring words, and of course, any statements the other driver made about drinking.

So what are punitive damages in drunk driving cases?

In North Carolina, under General Statute Chapter 1D, Punitive Damages, anyone hurt or killed by a drunk driver, who proves the driver was drunk and driving negligently, may be entitled to receive punitive damages on top of the compensatory damages present in every injury case. Compensatory damages are things like medical bills, lost wages, pain and suffering, permanent scars, lost work, ambulance and doctor bills, and permanent disability. Punitives damages are damages on top of the compensatory damages and are meant solely to punish the drunk driver and deter other people from drunk driving.

§ 1D-1. Purpose of punitive damages.

Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. (1995, c. 514, s. 1.)

In general, punitive damages are limited to 3 times the amount of the compensatory damages, or $250,000, whichever is greater. But the Legislature made an exception to the cap on punitive damages in North Carolina: drunk drivers.

§ 1D-26. Driving while impaired; exemption from cap.

G.S. 1D-25(b) shall not apply to a claim for punitive damages for injury or harm arising from a defendant’s operation of a motor vehicle if the actions of the defendant in operating the motor vehicle would give rise to an offense of driving while impaired under G.S. 20-138.1, 20-138.2, or 20-138.5. (1995, c. 514, s. 1.)

Do I need a lawyer to represent me when I have been hit by a drunk driver?

If you or a loved one gets hit by a drunk driver in Raleigh, Durham, or Chapel Hill, it is a good idea to at least have a free consultation with a lawyer. There are many reasons for this. First, you may be required to come to court as a witness in the drunk driving prosecution. Or you may be called on to give a victim impact statement at the drunk driver’s sentencing hearing. While the local District Attorney offices do a great job with victims, they can’t “represent you” or give you legal advice. Having your own lawyer, right from the start, means that I can come to the criminal court trial with you and help you through out. It also means that I will monitor the criminal case, and make sure the drunk driver receives appropriate punishment.

How does my lawyer help when I’m called as a witness or victim of a drunk driver?

Along the same lines, the criminal defense attorney can sometimes coordinate with me, as your attorney, to be very helpful to the injured party by facilitating money settlements with the injured party as part of criminal restitution or civil settlement. Sometimes the drunk driver’s lawyer will also coordinate with me to make sure that the insurance company for the drunk driver is paying a fair amount of money, considering the compensatory and punitive damages.

What experience does Nichols Law Firm and Chris Nichols, Attorney have making claims against drunk drivers?

I’ve been practicing law for 25 years and my first few years I actually defended drunk drivers when I worked for a senior attorney. This gave me great practical insight into how the criminal prosecution works. As a civil lawyer, I also have to prove the defendant was intoxicated, and having worked on both sides of this, I have a lot of knowledge. At any given time, my office usually has 4 or 5 cases against drunk drivers. Because of this, we have developed systems to catch drunk drivers in any lies or exaggerations they make about their alcohol use and rehabilitation. It’s not unusual for a criminal defendant to testify they have “put down the bottle”, only to have our private investigator see them buy booze at the ABC store and drive away on a limited permit that does not allow for that. When we catch defendants in lies like this, the cases against them often settle for more money and faster. Rarely do we have to try one of the civil cases against drunk drivers.

If you or a loved one has been hurt or killed by a drunk driver, you can call me, Chris Nichols, directly, for a free consultation: 919.915.0212

Be safe out there!

Chris Nichols
Nichols Law Firm

As a North Carolina Bad Faith Insurance lawyer, I deal with cases where homeowners insurance or commercial insurance wrongfully adjusts or wrongfully handles storm claims. These claims typically include refusing to pay for storm damage, refusing to properly replace a damaged roof, excluding flood damage, or simply low balling repair estimates.

So what can you do right now before the storm hits?

1) Make sure you have a copy of your insurance policy and declarations page. Read through what is covered. Know your coverage when you report your loss.

2) Prepare your home and business. You have a duty to mitigate damages when you can do that safely. Preposition tarps and repair equipment in a safe place so you can immediately plug holes and leaks. Have some buckets ready to catch water from leaks.

3) Take video of your home and business inventory. Preserve copies of important records before the storm hits. Take your phone and walk around your home or business and record items of value. Narrate the video and explain what the item is. For businesses, make sure you know and document exactly what is in inventory. Keep these papers with you when you evacuate.

Did you know that you can hire a lawyer to negotiate losses with your insurance company? There are non-lawyers who act as “public adjusters” and charge you a percentage of what you recover. But most public adjusters are no lawyers, so that can not advise you on the legal meaning of your insurance contract, or whether the behavior of the insurance company is in violation of good faith requirements for insurance companies. Furthermore, if the insurance company won’t do the right thing, only a lawyer can file a law suit to enforce your rights under your insurance contract. Many law firms charge exactly the same as non-lawyer public adjusters to negotiate claims before litigation begins.

Nichols Law Firm has experience handling storm losses and works with experienced engineers, architects, roofers, and general contractors to make sure you get the fair and full value for your loss.

On a personal note, I grew up in Hurricane country. I lost my home in 2004 to a huge tree when a micro-burst toppled a 100 ft pine tree on my house during Hurricane Isobel, right here in North Carolina. I, my wife, and my 2 year old were in the home when it happened- thankfully no one got hurt. I know exactly what it is like to be displaced from your home and have your insurance company haggle with you over everything. It’s very personal to me.

So be prepared for the worst, but hope for the best!

Chris Nichols
Nichols Law Firm
www.NicholsTrialLaw.com

The problem is that it is hard to find the statute that allows the hearing. The reason for that is that due to some federal law changes, which were eventually reversed, North Carolina law changed, but then the new law was rendered inoperable by the federal law changing back. Sounds complicated, and it is, but this post explains all of that.

The practical issue is this: if you google “NC Medicaid Lien Statute” you will find the 2017 “changed” statute in NC that is no longer good law. What you need is that statute language from before the 2017 changes.

That law is from House Bill 982 from 2013. Below is a link to the bill that was signed into law. This is, by way of the federal law changes and the magic of retroactive legal language, the real law on Medicaid liens now. This statute contains the procedure and deadlines you need to successfully challenge a Medicaid lien claim in North Carolina.

www.ncleg.net/Sessions/2013/Bills/House/PDF/H982v5.pdf

If you find yourself needing to challenge the lien claim, my office does this work for other lawyers on a case by case basis. So give me a call to discuss.

Chris Nichols
www.NicholsTrialLaw.com

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.
2. Venue is properly laid in this Court pursuant to N.C. Gen. Stat. §1-80 and §1-82.
3. That NCGS §108A-57 governs Medicaid lien recovery in North Carolina.
4. 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).
5. 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.”
6. 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…”
   
7. 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).
8. 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”.
9. 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.”
10. 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.
11. 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.
12. 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.
13. 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.
14. 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

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.

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

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:

Ҥ 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

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

http://www.buchanandisability.com/helpful-resourcesandarticles/erisa-502c-actions/

My law school covered the event.

Chris Nichols
www.NicholsTrialLaw.com

Chris Nichols

Click SEND on the top of the form or attach to an email to me.

Chris Nichols

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

The Governor signed the new bill incorporating the holding of Wos on July 18, 2013. The bill is effective immediately. You can view House Bill 982, in final mark-up version here: House Bill 982 

Here are the things we KEPT in the old § 108A-57. Subrogation rights; withholding of information a misdemeanor:

• Medicaid is still limited to a maximum of 100% of the lien OR One Third (1/3) of the gross settlement.
• Medicaid still prorates within their 1/3 with unpaid medical providers asserting liens.
• Payment by the lawyer of the 100% or 1/3 of the gross settlement is full and final payment of Medicaid’s lien (but medical lien holders paid pro-rata still get are owed their balances pursuant to NCGS 44-49 and 50. 

Here are the NEW provisions that reflect the Supreme Court’s determination that our previous Medicaid statute was in conflict with Federal law:

• Medicaid recipients can challenge the 1/3 or 100% lien by filing a Petition with a court of competant jurisdiction for “a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim.”
• TIMING OF PETITION: Those petitions must be filed within 30 days of all parties signing a settlement agreement OR court approval of the settlement OR a judgment being issued.
• The Court will conduct an evidentiary hearing and may consider any factors it deems just and reasonable in determining the allocation of the settlement.
• The burden of proof is on the petitioner to prove by “clear and convincing evidence” that Medicaid is demanding too large a portion of the settlement.

One other excellent part of the new statute says Medicaid can compromise the liens at any time:

(a3) Notwithstanding the presumption arising pursuant to subsection (a1) of this section, the medical assistance beneficiary and the Department may reach an agreement on the portion of the recovery that represents compensation for the Medicaid claim. 

In the past, Medicaid took the position they could not negotiate their lien with recipients. This new portion allows for that negotiation to occur at any time, even before a petition is filed.

Chris Nichols
www.NicholsTrialLaw.com

The hearing is available live steam through the NCLeg website.

Bill Patterson from the research division notes that written responses have been received regarding questions from the committee. Also available on the J1 subcommittee folder on NC Leg website.

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You can download the pdf files and open them in Acrobat and then CTRL F search for the codes that show up on your conditional payment letters from Medicare. This will help you sort out medical visits that have been “coded” for payment for non-related medical procedures and visits.

This makes it easier to find and eliminate appointments for pre-existing conditions. You can also scan in a long conditional payment spread sheet, do a conversion to searchable text (OCR) and then use the search feature on that to find the billing codes.

Hope this is helpful to some of you.

Chris Nichols
www.NicholsTrialLaw.com

Can a medical provider claim a lien under NCGS 44-49 if the medical bills have been paid by the workers compensation carrier prior to injured worker pursuing a third part claim against a tortfeasor?

Worker was injured, workers comp. paid his medical bills at the local hospital. A case was pursued against the negligent third party and we just received a lien notification letter from the hospital.

Can they do this?

My answer:

No. A workers compensation (WC) medical payment is a “payment in full.” The hospital submitted to WC, WC paid what is the allowable expense and the hospital has to write off the remainder. They don’t get to double bill or bill for the unpaid portion.

I would write the hospital a letter asking them to set out in writing what what the total charges are, what they have been paid in the past, and what they are asking from your client now.

Get that in writing.

The follow up with a letter to the department that claimed the lien and make sure you copy one of the Medical Dcotors in charge with the following laws:

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_97/GS_97-26.html

A medical provider’s reimbursement is limited to the maximum amount approved in the NCIC Medical Fee Schedule, unless the provider has contracted with the insurer for a different amount. If neither the fee schedule nor a contractual fee applies, the maximum reimbursement allowed is the usual, customary, and reasonable charge for the service.

N.C.G.S. §97‐26(c)

N.C.G.S. §97‐90(e) governs this issue and states:

“A health care provider shall not pursue a private claim against an employee for all or part of the costs of medical treatment provided to the employee by the provider unless the employee’s claim or the treatment is finally adjudicated not to be compensable or the employee fails to request a hearing after denial of liability by the employer.”

N.C.G.S. §97‐88.3(c) establishes penalties for medical providers who improperly pursue private claims against employees:

“A health care provider who knowingly charges or otherwise holds an employee financially responsible for the cost of any services provided for a compensable injury under this Article is guilty of a Class 1 misdemeanor.”

That’s straight out of the North Carolina Medical Society guide: http://www.ncmedsoc.org/non_members/project_sustain/workerscomp_faq.pdf

I’m thinking that when faced with criminal liability, the hospital will about face on this one.

And of course, if the bill was never submitted to or paid by WC, then I think they can claim a lien. Though if they breached their duty to submit to WC, then they may just be completely out of luck.

Don’t forget that WC does have a lien for the medical bills they paid.

Chris Nichols
www.NicholsTrialLaw.com