Arkansas Department of Health and Human Services v. Ahlborn:
Sea Change or Status Quo for Resolution of Medicaid Liens?
The Medicaid program, a public-assistance system providing medical care for certain disabled and low-income individuals, is exceptionally complicated. The complexity begins with the text of the federal Medicaid law, which the United States Supreme Court has described as 'an aggravated assault on the English language, resistant to attempts to understand it.' Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). Another federal judge called on to interpret federal Medicaid law commented: 'The Medicaid Act is actually a morass of interconnecting legislation. It contains provisions which are circuitous and, at best, difficult to harmonize.' Mertz v. Houston, No. 01-2627, (E. D. Pa. July 31, 2001).
Adding to the complexity, Medicaid is governed by both federal and state law. In every State, the Medicaid program is administered locally, through state Medicaid agencies. (In Oregon, Medicaid is administered through the Oregon Department of Human Services.) Each state is free to enact its own statutes and administrative rules to regulate its Medicaid program, provided those statutes and rules comport with the overarching federal law. 42 USC 1396(a).
Perhaps unsurprisingly, there are a number of areas in which Medicaid agencies of different states apply different, and sometimes contradictory, interpretations of federal law. One such area is the satisfaction of Medicaid liens against personal injury settlements. These materials are intended to provide guidance on how Oregon’s Department of Human Services (hereafter, 'Oregon DHS' or 'DHS') applies the federal law governing Medicaid liens. In particular, the information presented here addresses the way Oregon DHS is applying Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), a landmark U.S. Supreme Court decision dealing with Medicaid liens in personal injury cases.
The Ahlborn decision is a textbook illustration of the 'difficult-to-harmonize' provisions of the Medicaid Act. The case addressed an apparent contradiction between 42 USC 1396(a), which requires state Medicaid agencies to seek reimbursement of Medicaid expenditures from liable third parties; and 42 USC 1396(p), which prohibits states from placing liens against Medicaid recipients’ property prior to their deaths (this latter provision is commonly known as the 'anti-lien provision'). In a unanimous decision, the Supreme Court resolved the apparent conflict, limiting the reach of state Medicaid agencies’ liens against personal injury settlements and judgments.
Although the ruling in Ahlborn seems relatively straightforward, its application in the states has been far from uniform. In this regard, the case is a textbook illustration of the second source of complexity mentioned above (interstate discrepancies). State Medicaid agencies have interpreted and applied the decision in quite disparate ways and, as a result, confusion abounds regarding the practical impact of the decision for Oregon lawyers settling personal injury cases for Oregon Medicaid recipients.
Although Ahlborn has at times been described as a 'sea change' for the way Medicaid liens are negotiated and resolved, its practical impact in Oregon has been more nuanced. Oregon DHS personnel (and their advocates at the Oregon Department of Justice) are well aware of the Ahlborn ruling, and have addressed it in writing. But the extent to which Ahlborn has changed the status quo for negotiating and resolving Medicaid liens in Oregon remains somewhat unclear, because DHS examines every case individually, and resists a formulaic interpretation of the decision. Personal injury attorneys representing Oregon Medicaid recipients should proceed with caution, and avoid making assumptions about how Ahlborn will be applied in their cases.
The Facts and Holding of Ahlborn:
In order to gain a general understanding of how Oregon DHS is currently applying the Ahlborn decision, a review of the case is necessary:
In 1996, Arkansas resident Heidi Ahlborn suffered permanent brain damage resulting from a car accident. Lacking the resources to pay for her medical care, Ahlborn applied for Medicaid through the Arkansas Department of Health and Human Services (hereafter 'ADHS'). As a condition of eligibility for Medicaid, Arkansas law required that Ahlborn assign to ADHS her right to any settlement, judgment, or award she might obtain against any third party, up to the full amount of Medicaid benefits she received. ADHS deemed Ahlborn eligible for benefits, and ultimately paid out $215,645.30 on her behalf.
Ahlborn sued the alleged third-party tortfeasors in state court, seeking damages for past and future medical costs; permanent physical injury; past and future pain, suffering, and mental anguish; and past and future loss of earnings. In 2002, her case settled out of court for $550,000.00, a sum representing approximately one-sixth of the total value of her claim. Initially, no allocation was made between the various categories of damages, but the parties later stipulated that only $35,581.47 of the total settlement represented compensation for past medical expenses. ADHS did not participate (nor did it ask to participate) in the settlement negotiations. Instead, acting pursuant to Arkansas statute, ADHS asserted a lien against the settlement proceeds for the full $215,645.30 it had paid on Ahlborn’s behalf.
Ahlborn challenged the lien in federal court, relying on the 'anti-lien provision' of the Medicaid Act. The anti-lien provision generally bars states from imposing liens against the property of Medicaid recipients prior to death. (See 42 USC 1396p(a)(1), attached as Exhibit 1.) Ahlborn argued that ADHS’s lien violated the anti-lien provision to the extent that its satisfaction would force her to turn over settlement funds not allocable to past medical expenses. She maintained that the settlement was her property, and that the forced assignment to ADHS applied only to that portion of the settlement allocable to past medical expenses.
ADHS contended that the anti-lien provision did not prevent full recovery because, as a condition of Medicaid eligibility, Ahlborn had assigned to the State her right to any settlement paid by a third party who was liable for her medical costs. The agency invoked the third-party liability provisions of the Medicaid Act which, among other things, require states to:
- Ascertain the legal liability of third parties for the injury-related medical expenses of Medicaid recipients;
- Seek reimbursement of Medicaid costs from liable third-parties to the extent of their liability; and
- Enact laws empowering state agencies to recover injury-related medical costs (including forced assignments).
(See 42 USC 1396a(a)(25) and 42 USC 1396k(a), attached as Exhibits 2 and 3.) ADHS’s position rested on its assertion that the settlement proceeds remained the property of the third party tortfeasors until the Medicaid program was fully reimbursed for the funds it had expended on Ahlborn’s medical care.
The District Court sided with ADHS, holding that it was entitled to a lien in the full amount expended on Ahlborn’s behalf ($215,645.30). The Court found no conflict between the federal anti-lien provision and the Arkansas statute giving ADHS the right to recover the full amount of its expenditures, regardless of allocation. The Eighth Circuit reversed this decision, holding that ADHS could only recover from that portion of the settlement allocable to past medical expenses.
The Supreme Court unanimously affirmed the Eight Circuit, holding that the third-party liability provisions of the Medicaid Act cannot and do not trump the anti-lien provision. Addressing the arguments put forth by ADHS, the Court recognized that the anti-lien provision of the Medicaid Act cannot be read in isolation, as such a reading would bar all liens (including liens against settlement funds properly allocated to past medical care).
The Court acknowledged that under the third-party liability provisions, states are specifically authorized to require 'forced' assignments of third-party reimbursements as a condition of eligibility. However, the Court held that those provisions are exceptions to the anti-lien provision:
To the extent that the forced assignment [of settlement proceeds] is expressly authorized by the terms of [the Medicaid Act], it is an exception to the anti-lien provision… But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception… is limited to payments for medical care. Beyond that, the anti-lien provision applies.
The Court thus limited the reach of the third-party liability provisions of federal Medicaid law.
To ADHS’s concern that parties to personal injury disputes might manipulate settlements and allocate away states’ interests, the Court responded that the risk of manipulation could be avoided, either '…by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.' This part of the opinion, though technically dictum, has in some cases impacted the process of Medicaid lien negotiation and resolution more than the case’s central legal holding.
Ahlborn’s Impact Generally:
In the immediate aftermath of the decision, the Centers for Medicare and Medicaid Services 1 issued a Memorandum clarifying the third-party recovery rules. The Memorandum (attached as Exhibit 4) advised Regional Medicaid Administrators of the Ahlborn ruling, and suggested that it could result in significant changes in the resolution of Medicaid liens. The Memorandum stated:
Prior to the Supreme Court’s decision in Ahlborn, CMS had interpreted the Medicaid third party liability provisions to authorize States to pass laws permitting full recovery of Medicaid assistance payments from third party liability settlements, regardless of how the parties allocated the settlement. The Supreme Court rejected this interpretation of the Medicaid statute and held that to the extent State laws permit recovery over and above what the parties have appropriately designated as payment for medical items and services, the State was in violation of federal Medicaid laws.
The Memorandum went on to include a list of 'State Actions Prohibited under Ahlborn,' as well as a list of 'State Actions Which Would Mitigate the Adverse Consequences of Ahlborn.'
CMS’s list of prohibited state actions can be summarized as generally precluding enforcement of state Medicaid laws (including forced assignment laws) to the extent that such laws purport to reach settlement funds properly allocated to non-medical damages. The list of suggested mitigating state actions—which is both longer and more specific--includes (but is not limited to) the following:
- Active involvement by state Medicaid agencies in the litigation and settlement process;
- Passage of state laws requiring mandatory joinder of a state when a Medicaid lien is at issue;
- Strengthening of notification and cooperation requirements for attorneys, such that non-compliance (i.e., failure to notify) could render settlements voidable;
- Passage of state tort and/or insurance laws giving priority to payment of medical expenses and/or permitting settlement only with state’s consent;
- Use of cost-effectiveness criteria for determining which liability settlements should be pursued for recovery of Medicaid expenses;
- Pursuit of a lesser amount than the full cost of care in order to avoid litigation.
The Memorandum made clear that, in the view of CMS, all of these suggested mitigating actions comport with federal Medicaid law.
As mentioned above, the Ahlborn decision has not been uniformly interpreted and applied in every state. Some states have enacted new laws specifically addressing Ahlborn, and setting out formal procedures for allocating settlements (see, for example, California Welfare and Institutions Code Section 14124.76). At least one state has enacted a strict statute requiring the written consent of the state Medicaid agency before a claim involving a Medicaid recipient can be commenced or settled. Utah Code Ann. 26-19-7(1)(a). Still other states, including Oklahoma, Idaho, and Oregon, have enacted laws or administrative rules creating a rebuttable presumption that all settlement proceeds are in payment for medical services. 63 Okla St. 5051.1(d); I.C. 56-209b; OAR 461-195-0305.
Oregon´s Position Vis-a-Vis Ahlborn
Shortly after Ahlborn was decided, a representative of DHS’s Personal Injury Liens unit2circulated a letter commenting on the decision. (See Letter from Angela Molthan, attached as Exhibit 5). Interestingly, the letter did not address the central holding of the case (i.e., the limitations on personal injury liens required by the anti-lien provision). Instead, it emphasized the reporting obligation imposed by ORS 416.530. This statute (attached as Exhibit 6) requires Medicaid applicants and recipients, or their attorneys, to immediately notify Oregon DHS whenever a personal injury claim is made against a potentially liable third party.
In addition to shining a light on the statutory reporting obligation, the DHS letter suggested that, in the wake of Ahlborn, failure to timely notify DHS would have serious consequences. Specifically, the letter stated that in cases where DHS was not given timely notice of a claim, and was therefore not included in settlement negotiations regarding the claim, it would explore 'any and all legal means for challenging any resulting settlement agreement.' The letter cited ORS 416.610, 416.580, and 95.230 (attached as Exhibits 7, 8, and 9 respectively) as possible avenues for such challenges.
Clearly, Oregon DHS intends to follow the advice of CMS and participate actively in the litigation and settlement process. Presumably, unless DHS is included in settlement negotiations, it will challenge allocations it deems suspect. However, the extent to which the Ahlborn decision has created opportunities for Medicaid lien reduction based on settlement allocation is, at best, ill defined.
Oregon law governing Medicaid liens in personal injury cases does not specifically address the Ahlborn ruling. The statutory provisions, located at ORS 416.510 through 416.610, are substantially reiterated in the implementing administrative rules, located at OAR 461-195-301 through 461-195-350, and neither source offers formal guidelines or procedures for proper allocation of settlements. However, the administrative rules, which generally provide greater detail than the statutes, do state DHS’s default position with regard to allocation. OAR 461-195-0305(5) states: 'There is a rebuttable presumption that the entire proceeds from any judgment, settlement, or compromise, are, unless otherwise identified, in payment for medical services.'
Like several other states, Oregon has enacted a presumption that, if not successfully rebutted, will produce the same result as the Arkansas statute at issue in Ahlborn (i.e., full recovery of all Medicaid expenditures). Because the rule allows for the possibility of other allocations, it does not run afoul of the Ahlborn holding. However, the circumstances in which settlement proceeds may be 'otherwise identified' (i.e., allocated to damages other than past medical expenses) are nowhere defined.
Recently, this author spoke with a Liens Coordinator at the Personal Injury Liens Unit regarding Oregon DHS’s current interpretation and application of the Ahlborn decision. The Liens Coordinator confirmed that DHS has no fixed methodology for lien valuation or approval of settlement allocation, and indicated that each case is evaluated individually, taking into account all relevant facts and circumstances. The Lien Coordinator followed up with a letter (attached as Exhibit 10), quoting Assistant Attorney General Gretchen Merrill as saying: 'The Supreme Court in Ahlborn did not require any methodology for valuation; rather, that was a specific factual stipulation entered into by the parties, and it is not binding on the State of Oregon, absent any statute or law otherwise.'
Although DHS has not implemented any specific methodology for lien valuation, nor provided formal guidance as to what will constitute an acceptable settlement allocation under its interpretation of Ahlborn, Oregon law does provide one specific avenue for lien reduction (albeit one only tangentially related to Ahlborn). ORS 416.600 and OAR 461-195-320 (attached as Exhibits 11 and 12, respectively) provide that DHS may release or compromise its lien in cases where the plaintiff is likely to have significant future medical expenses as a result of the personal injury. In deciding whether a given plaintiff qualifies for full or partial release of the lien, DHS will consider, among other things:
- The nature and timing of the future medical treatment;
- The anticipated cost of the future medical treatment;
- The amount of the settlement or judgment at issue;
- Whether the recipient has timely complied with the notification requirement imposed by ORS 416.530;
- Whether the recipient has other sources of payment of future medical treatment; and
- The effect of the requested release on the recipient’s continued eligibility for public assistance
The statute and rule containing the above criteria predate Ahlborn, but representatives of DHS’s Personal Injury Liens Unit point to these provisions as examples of the factors DHS will take into account in evaluating settlement allocations.
Practical Application of Ahlborn in Oregon:
Although many questions remain regarding Ahlborn´s impact in Oregon, some things are clear. First and most important, attorneys should be diligent in complying with the reporting obligation of ORS 416.530. In most cases, compliance requires only the completion of a simple form (there are two forms; one for vehicle related injuries, and one for non-vehicle related injuries). The forms are available on the Personal Injury Liens Unit’s website, which also contains specific contact information and links to relevant statutes and rules.
The main phone number for the Personal Injury Liens Unit is 503-378-4514.
In addition to the initial notification, personal injury lawyers should keep DHS apprised of proposed settlements and/or other significant developments in the case. The Personal Injury Liens Unit can and will participate in mediations when appropriate, and is available to negotiate with regard to Medicaid liens at any point during the course of litigation. While it is not clear that allowing full participation by DHS will result in the agency’s approval of a favorable allocation of damages (and thus, a reduction in the Medicaid lien), the consequences of failing to allow such participation can be grave.
Personal injury lawyers should bear in mind that DHS is emphasizing the reporting obligation because it intends to prevent parties to personal injury disputes from allocating away its interest. In Oregon, where no formula or methodology exists to guide the process, it is critical to seek a negotiated agreement with DHS regarding the equitable allocation of the settlement. In cases where a negotiated agreement on allocation cannot be reached, it may be necessary to submit the matter to a court for decision, as the Ahlborn opinion suggested. Although DHS is generally quite zealous in defending its positions, some factual circumstances (and the proposed allocations that stem from them) might inspire DHS to apply one of CMS’s suggested mitigating actions and '[pursue] a lesser amount than the full cost of care in order to avoid litigation.' In some cases, including those where negotiation proves difficult or court action appears necessary, it may be prudent to retain, or co-associate with, advisors who have experience dealing with Oregon DHS and expertise navigating the maze that is Medicaid law.
1 – Also known as 'CMS,' The Centers for Medicare and Medicaid Services is a federal agency within the United States Department of Health and Human Services that administers the Medicare program and works in partnership with state governments to administer the Medicaid program. Pronouncements from CMS are generally accorded substantial deference by state Medicaid agencies.
2 – The Personal Injury Liens Unit is a subdivision of Oregon DHS’s Office of Payment Accuracy and Recovery, with primary responsibility for negotiating and resolving Medicaid liens in personal injury cases.