Medicaid Subrogation Claims

Texas Medicaid Right of Recovery

Tex. Hum. Res. Code Sec.32.033 is the statute that creates the Texas Health and Human Services Commission's right of recovery. (To find the relevant sec. use the find control in your browser after you get to the general section.) The State has a separate cause of action against the tortfeasor for the amount it has paid for treatment for injuries in the accident. This is not a "lien" statute such a hospital may have for emergency care funds collected from the tortfeasor.

There are two types of claims, acute care and long term care. Different offices of the HHSC must be contacted. The Texas Medicaid & HealthCare Partnership handles casualty claims. Contact their web site for additional information and for the necessary authorization and notification forms (You must use Windows Explorer to contact this web site for these forms. 
They do not consider Chrome a secure browser). 

You must complete the Medical Authorization Form and the Tort Response Form before you will be provided information . On receipt of the tort response form, they should respond with 10 days usually with a subrogation letter and ten days later they should send an "amount letter". As in dealing with any agency, you should followup by phone to confirm that they received your notice and are sending the "amount letter". Be patient, but firm. These procedures are in a state of flux due to the federal "The Smart Act." The CMS has issued a interim final order. (it would help if they would speak English) with a comment peroid ending in November of 2013. These requlations will probably be implimented on January 1, 2014.

Although the telephone contact may be necessary to confirm which type of claim is involved, get the name of the contact and confirm any agreements in writing as you would in dealing with another attorney. The amount or character of the claims may change over time and should be confirmed in writing before any settlement is made.

A. Acute care claims.

Acute care claims are claims arising from an action that gives rise to a personal injury claim against a third party. The HHSC claim is against the portion of the claim that involves medical benefits (claims for pain and suffering cannot be used to avoid this claim, but it does not include property damage claims or loss of earnings).

1. Applicant's Duties

The applicant must notify the HHSC within 90 days of an unsettled tort claim, insurance coverage or potential cause of action.

2. Attorney's Duties

The attorney must notify the HHSC within 45 days of representation. The Tort Response Form should satisfy the content requirements.

3. Limit on attorney fees.

The attorney may not charge the client for recovery of Medicaid funds more than 15%.

4. Waiver of Attorney Fees.

The HHSC may waive recovery if the cost of recovery would exceed the amount that could be recovered. If the States waives recovery, the plaintiff's attorney must waive attorney fees on that portion of the settlement.

5. Balance Billing.

If a provider accepts Medicare payments they are prohibited from seeking the difference between their private rate and the Medicare reimbursement from the patient.

If there is a conflict over a waiver or reduction of an acute care claim, contact, Christy Dillman at christy.dillman@HHSC.state.tx.us.

B. Long Term Care Claims.

Long term care claims, including nursing home care, are for claims that do not fall in to the acute care category. The applicant's and the attorney's duties are the same as for acute care claims. The same limits for attorney fees and balance billing, also, apply. The same forms as are used for acute care claims should be used for long term care claims

The recovery a claim for long term care is handled by the Health and Human Services Commission. You may be involved with two sections of the same agency for the same transaction. The requlations are found at 1 Tex. Admin. Code Sec.354. The contact are:

Third party Recovery

P.O. Box 149081

Austin, Texas 78714-9081

Mail Code #-400

512-430-3400

For a reduction or waiver contact:

Staff Attorney

P.O.Box 149030

Austin, Texas 78714-9030

512-438-3126

This post is for information only by attorneys. It should not be considered as legal advice. If you are considering any action, contact an attorney personally as the facts of an individual case may change the action to be taken. If you decide to proceed without advice, you are on your own.

Most of the credit for this post goes to Pi-Yi Mayo of Baytown, Texas who submitted a paper on the same topic to the Advanced Personal Injury Law Course 2011. A more extensive treatment can be found on his web site.

Submitted by:

Ben A. Goff, Attorney

Mitchell, Goff & Mitchell, L.L.P.

Free Legal Information

The State Bar of Texas provides library that may be accessed through the State Bar web site, http://www.texasbar.com, as part of the CLE portion of the web site. You will need to register with the State Bar to get attorney access to this site. Once on the site your must register separately with the CLE portion. This is what is available without charge.

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Ben Goff, personal injury attorney

http://www.mitchellgoff.com/

Enica Joyner killed in apartment house fire

Enica Joyner killed in apartment house fire
Enica Joyner, age 11, along with one other person died in an apartment fire in Arlington, Texas on July 3, 2011. The Fort Worth Star-Telegram report that some of the residents were forced to jump from a second-floor breezeway and at least one person fled the building in flames. One resident, Karen Seabolt, told the newspaper, “Iren outside and saw a man in the parking lot with his legs and hands on fire.
Te fire started around 1 p.m Saturday at the Tanglewood Apartments. Fire officials reported that when the firemen arrived the second floor was in flames. James Self, Arlington assistant fire chief stated that it was “curious” that when they arrived that the fire was intense.
The Dallas Morning News reported that nvestigators determined that children were burning paper with a lighter in a breezeway when the fire got out of control. The kids, all under the age of 10, didn't tell anyone about the blaze, causing it to grow substantially before rescue officials were alerted.

Cases such as this require prompt investigation. If you are a relative or friend of the family, please recommend to the family that they contact their family attorney to determine if further investigation is warranted.

Ben Goff

http://www.mitchellgoff.com/

DEBT CEILING

Fourteenth Amendment to the United States Constitution, SECTION. 4 states:
“The validity of the public debt of the United
States, ... shall not be questioned.” For a document as vague as the Constitution that is pretty specific.

Bruce Bartlett:

What Debt Limit? Plan B is the 14th Amendment: I now feel even more strongly that the Fourteenth Amendment trumps the debt limit. There is strong support for this position in an article by George Washington University law professor Michael Abramowicz. Writing in the Tulsa Law Journal (“Beyond Balanced Budgets, Fourteenth Amendment Style,” 33:2, Winter 1997, pp. 561-612), he concludes that any government action “making uncertain whether or not a debt will be honored is unconstitutional.” As Abramowicz explains:
A debt does not become valid or invalid only at the moment payment is due. A debt’s validity may be assessed at any time, and a debt is valid only if the law provides that it will be honored. Therefore, a requirement that the government not question a debt’s validity does not kick in only once the time comes for the government to make a payment on the debt. Rather, the duty not to question is a continuous one. If as a result of government actions, a debt will not be paid absent future governmental action, that debt is effectively invalid. The high level of generality recognizes that instead of referring to payment of debts, the Clause bans government action at any time that affects the validity of debt instruments…. Moreover, there is no such thing as a valid debt that will nonetheless not be honored.

In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States government bond "went beyond the congressional power". 294 U.S. 330 at 354.

Since the entire debt limit process is unconstitutional, why doesn't the President just say so. It really makes sense that a minority in the House should not be able to hold the nation hostage to get their way.

Dale Curruth of Little Elm was killed on April 14, 2011 in a motor vehicle accident.

The Dallas Morning News reported: A 23-year-old Little Elm man died Thursday after his motorcycle collided with a passenger vehicle in front of Wal-mart at FM423 and Eldorado Parkway.

Frisco police identified the motorcyclist as Dale Curruth.

Investigators say the vehicle was traveling southbound on FM423 at 4:45 p.m. when it attempted to turn left into the Wal-Mart parking lot. Curruth was traveling northbound on FM423 and struck the side of the passenger vehicle, which had failed to yield the right of way.

Curruth, who was wearing a helmet, was transported to Centennial Medical Center in Frisco, where he was pronounced dead.

The intersection was closed for nearly five hours after the wreck. The investigation is continuing. No charges have been filed.

Few details were available from the news reports so it is difficult to determine legal responsibility. As in most cases of this type it is important to have an early investigation by an independent objective source. Contact by a friend or relative with the family attorney would assist the family at this tragic time.

Carmen Mitchell

mgmtexaslaw.com

Death Penalty

The United States Supreme Court recently in a one sentence unsigned order denied an appeal by Charles Dean Hood based on an affair between the trial judge and the prosecuting attorney. For those interested, here is an unpublished opinion from the Texas Court of Criminal Appeals. For a discussion of the refusal of courts to deal directly with death sentence appeals see this article from Slate. I agree with the writer that it is upsetting that the courts will not even spend the time when a human life is involved to spill some ink explaining their position or in the case of the Texas Court of Criminal Appeals not publish the opinion when they do bother to write.
CHARLES DEAN HOOD, Appellant v. THE STATE OF TEXAS,THE COURT OF CRIMINAL APPEALS OF TEXAS, NO. AP-75,027, ON DIRECT APPEAL FROM ORDER DENYING DNA TESTING FROM THE 296TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS

---

Keasler, J., delivered the opinion of the Court joined by Keller, P.J., and Price, Womack, Johnson, Hervey, Holcomb, and Cochran, JJ. Meyers, J., did not participate.

O P I N I O N

Charles Dean Hood was convicted of capital murder and was sentenced to death. He filed a motion for forensic DNA testing, which the trial court denied. Hood appeals, arguing that the trial judge erred in various respects. We disagree and affirm the trial court's judgment.

Facts

In the fall of 1989, [Hood] was living with his boss, Ronald Williamson, and his boss' girlfriend, Tracie Wallace (the two victims in this case). On November 1, 1989, [Hood] was scheduled to report to work at 12:30 p.m. At 11:30 a.m., [Hood]'s boss came home for lunch and found a note allegedly from his girlfriend saying that she had gone jogging. However, Williamson apparently suspected something was wrong since Tracie's name was misspelled on the note. Williamson called the police and told them that he believed that his girlfriend had been abducted. After the police arrived at the victims' house, they found both Williamson and Wallace dead with gunshot wounds to their heads. [Hood]'s fingerprints were found on the "girlfriend's" note, on garbage bags that had covered her dead body, and on documents that had been taken from his boss' safe. [Hood] was also later found to be in possession of several items of Williamson's property. ⁽¹⁾

Procedural History

Hood filed a motion for DNA testing on May 19, 2004. In it, he requested testing of eight different items: a tan jacket, two pillowcases, a pair of jeans, a T-shirt, a black jacket, a comforter, and a sponge. He attached to his motion an anonymous letter from a "Concerned Citizen" sent to the Collin County District Attorney in May 2003. The letter implies that Hood is innocent of the crime.

The State filed its response and proposed findings on August 23, 2004. The trial judge denied Hood's motion on August 25 and signed the State's proposed findings on September 8. The judge made the following findings: All eight items exist and are available for testing.

* Identity was an issue in the case. Hood must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.

* Testing of the items could not provide results that could exculpate Hood.

* Hood would have been convicted even if evidence of forensic DNA testing had been presented at trial.

* Hood has not met his burden to show that he is seeking genetic testing for any reason other than to delay the execution of his sentence.

Two days later, Hood filed his own proposed findings and notice of appeal.

Analysis

In his first point of error, Hood argues that the trial judge applied the wrong burden of proof. He complains that the judge required him to establish "by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing." According to Hood, applying this burden of proof required him to "actually establish" that he would not have been convicted. But, Hood argues, he should have been required to prove only a "probability" that he would not have been convicted.

Hood's argument fails because he relies on an outdated version of the statute. The former version of Art. 64.03 required a convicted person to establish by a preponderance of the evidence that "a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing."⁽²⁾ But the Legislature amended the statute effective September 1, 2003. ⁽³⁾ The statute now requires a convicted person to establish by a preponderance of the evidence that "the person would not have been convicted if exculpatory results had been obtained through DNA testing." ⁽⁴⁾ The current statute applies to cases in which the DNA motion was filed after the statute's effective date. ⁽⁵⁾ Hood's motion was filed May 19, 2004. The trial judge therefore applied the correct statute and the correct burden of proof.

Additionally, Hood is mistaken that this burden of proof requires him "to actually establish" that he would not have been convicted. The statute is clear that the burden of proof is preponderance of the evidence. Hood's first point of error is overruled.

In his second and third points, Hood contends that the trial judge erred in finding that DNA results would not be exculpatory and that he would have been convicted even with DNA testing. Hood claims that the evidence of his fingerprints at the home is not persuasive because he lived at the home. He argues that there was also evidence of unknown fingerprints in the home and that the murder weapon was never found. Hood argues that Andrew "Andy" Yourston, Wallace's former boyfriend, had a motive for killing the two. Additionally, the "concerned citizen" letter suggests that the killer was named "Randy," which is close to "Andy."

We reject Hood's argument because the evidence at trial conclusively established Hood's guilt. In addition to the evidence mentioned above, there was evidence that:

* On the morning of the offense, Hood purchased flowers, using Williamson's credit card and wearing the watch that Williamson usually kept locked in his safe.

* When Williamson called 911, he was talking to Hood during the phone call; Hood's voice could be heard responding.

* Four minutes later, when the police responded, Williamson was dead and Hood was no longer on the premises.

* Tracing Williamson's credit card, the police discovered that Hood was en route to Indiana to visit the woman to whom he sent the flowers.

* Hood stopped to cash two of Williamson's business checks that he forged to himself, and to pawn one of Williamson's rings.

* Hood arrived in Indiana in Williamson's car, in which were many other items stolen from Williamson's house.

Even if DNA tests revealed the blood of another individual at the crime scene - even Andrew Yourston - that evidence would at most establish that Hood acted with someone else in committing the crime. Hood's bloody fingerprints were found on the door to the room where Wallace's body was found and on the trashbags in which her body was wrapped. His fingerprints were on the note purportedly left by Wallace. These are not the fingerprints of someone who just happened to be living at the house; these are fingerprints demonstrating involvement in the crime. Hood's voice was on the 911 tape recorded minutes before Williamson's death, and Hood was then nowhere to be found when the police arrived. Hood was later apprehended in Indiana after leaving a trail of purchases with Williamson's credit card and possessing numerous items from the home, including Williamson's car. Hood fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. We overrule Hood's second and third points of error.

In his fourth and final point of error, Hood argues that the trial court erred in finding that his only reason for seeking DNA testing was to delay the execution of his sentence. We have already concluded that Hood fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. As a result, he cannot establish that the trial judge erred in denying his motion for DNA testing. We therefore need not decide whether his motion was made to unreasonably delay the execution of his sentence. Hood's fourth point of error is overruled.

Conclusion

The trial court did not err in denying Hood's motion for forensic DNA testing. We affirm the trial court's order.

DATE DELIVERED: March 2, 2005

PUBLISH

1. Hood v. State, No. 71,167, slip op. at 1 (Tex. Crim. App. Nov. 24, 1993) (not designated for publication).

2. Acts 2001, 77^th Leg., R.S., ch. 2, � 2, eff. April 5, 2001.

3. Acts 2003, 78^th Leg., ch. 13, � 3, eff. September 1, 2003.

4. Tex. Code Crim. Proc. Art. 64.03(a)(2) (Vernon Supp. 2004).

5. Acts 2003, 78^th Leg., ch. 13, � 8, eff. September 1, 2003.

Are you driving your client to loan sharks needlessly?

There are a number of companies that are loaning money to clients of attorneys on pending litigation. If you visit their web sites you will find statements that attorneys cannot ethically loan money to their clients. Some of these firms are charging credit card rates or higher for these loans. Many attorneys think that they cannot loan money to clients even for necessary medical or living expenses. This is not true in Texas. DR Rule 1.08(d)(1) provides that an attorney may advance money to a client for "necessary medical treatment or living expenses...". The attorney cannot charge interest on the transaction unless the client consents is in writing, the rate is fair to the client and the client is given the opportunity to contact another attorney (the latter may be a deal killer. You can still loan the money. You just cannot charge interest). DR Rule 1.08(a). For a more in depth analysis see this article from the University of California Law Review article on the ethics of loaning money to clients. It would be a good idea to check the law of the state where venue lies as some states flatly prohibit loans to clients.