An Act To Allow the Reduction of a MaineCare Lien
Maine Legislature, Session 129, LD 0194
Committee: Health and Human Services
Sponsors: CARDONE, HARNETT
Amends: 22 MRSA §14

Legislative Document
No. 194
H.P. 157
House of Representatives, January 17, 2019
An Act To Allow the Reduction of a MaineCare Lien
Reference to the Committee on Health and Human Services suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative CARDONE of Bangor.
Cosponsored by Representative: HARNETT of Gardiner.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §14, sub-§1, as amended by PL 2007, c. 381, §1, is further 
amended to read:
1.  Recovery procedures.  When benefits are provided or will be provided to a 
member under the MaineCare program administered by the department pursuant to the 
United States Social Security Act, Title XIX, including any prescription drug programs 
administered under the auspices of MaineCare, referred to collectively in this section as 
MaineCare, for the medical costs of injury, disease, disability or similar occurrence for 
which a 3rd party is, or may be, liable, the commissioner may recover from that party the 
cost of the benefits provided.  This right of recovery is separate and independent from any 
rights or causes of action belonging to a member under the MaineCare program.  For 
MaineCare recipients who participated in the MaineCare managed care program, "cost" 
means the total value of coverable medical services provided measured by the amount 
that MaineCare would have paid to providers directly for such services, were it not for the 
managed care system.  The MaineCare program  is the payor of last resort and shall 
provide medical coverage only when there are no other available resources.  The Attorney 
General, or counsel appointed by the Attorney General, may, to enforce this right, 
institute and prosecute legal proceedings directly against the 3rd party in the appropriate 
court in the name of the commissioner.
In addition to the right of recovery set forth in this subsection, the commissioner must 
also be subrogated, to the extent of any benefits provided under the MaineCare program, 
to any cause of action or claim that a member has against a 3rd party who is or may be 
liable for medical costs incurred by or on behalf of the member.  The Attorney General, 
or counsel appointed by the Attorney General, to enforce this right may institute and 
prosecute legal proceedings in the name of the injured person, member, guardian, 
personal representative, estate or survivor.  If necessary to enforce the commissioner's 
right of recovery, the Attorney General, or counsel appointed by the Attorney General, 
may institute legal proceedings against any member, including the agent, representative 
or attorney of that member, who has received a settlement or award from a 3rd party.
The commissioner's right to recover the cost of benefits provided constitutes a statutory 
lien on the proceeds of an award or settlement from a 3rd party if recovery for MaineCare 
costs was or could have been included in the recipient's claim for damages from the 3rd 
party to the extent of the recovery for medical expenses.  The commissioner is entitled to 
recover the cost of the benefits actually paid out when the commissioner has determined 
that collection will be cost-effective to the extent that there are proceeds available for 
such recovery after the deduction of reasonable attorney's fees and litigation costs from 
the gross award or settlement.  In determining whether collection will be cost-effective, 
the commissioner shall consider all factors that diminish potential recovery by the 
department, including but not limited to questions of liability and comparative negligence 
or other legal defenses, exigencies of trial that reduce a settlement or award in order to 
resolve the recipient's claim and limits on the amount of applicable insurance coverage 
that reduce the claim to the amount recoverable by the recipient.  The department's 
statutory lien may not be reduced to reflect an assessment of a pro rata share of the 
recipient's attorney's fees or litigation costs.  The commissioner may, at the 
commissioner's discretion, compromise, or otherwise settle and execute a release of, any 
claim or waive any claim, in whole or in part, if the commissioner determines the 
collection will not be cost-effective or that the best possible outcome requires 
compromise, release or settlement.
SUMMARY
Under current law, when MaineCare benefits are provided to an individual for the 
costs of injury, disability or other occurrence for which a 3rd party is held liable, the 
Commissioner of Health and Human Services is entitled to recover the costs of 
MaineCare benefits, and the statutory lien may not be reduced to reflect an assessment of 
a pro rata share of the recipient's attorney's fees or litigation costs.   This bill amends that 
provision of law to allow the statutory lien to be reduced.