CO Code § 25.5-4-301 (2021)
2021 Colorado Code|Title 25.5 - Health Care Policy and Financing|Article 4 - Colorado Medical Assistance Act - General Medical Assistance|Part 3 - Recovery|§ 25.5-4-301. Recoveries - Overpayments - Penalties - Interest - Adjustments - Liens - Review or Audit Procedures

    , no recipient or estate of the recipient shall be liable for the cost or the cost remaining after payment by medicaid, medicare, or a private insurer of medical benefits authorized by Title XIX of the social security act, by this title, or by rules promulgated by the state board, which benefits are rendered to the recipient by a provider of medical services authorized to render such service in the state of Colorado, except those contributions required pursuant to section 25.5-4-209 (1). However, a recipient may enter into a documented agreement with a provider under which the recipient agrees to pay for items or services that are nonreimbursable under the medical assistance program. Under these circumstances, a recipient is liable for the cost of such services and items.  (II.5) (A) A provider of medical services who bills or seeks collection through a third party from a recipient or the estate of a recipient for medical services authorized by Title XIX of the social security act in an amount in violation of subsection (1)(a)(I) of this section is liable for and subject to the following: A refund to the recipient of any amount unlawfully received from the recipient, plus statutory interest from the date of the receipt until the date of repayment; a civil monetary penalty of one hundred dollars for each violation of subsection (1)(a)(I) of this section; and all amounts submitted to a collection agency in the name of the medicaid recipient. When determining income or resources for purposes of determining eligibility or benefit amounts for any state-funded program under this title 25.5, the state department shall exclude from consideration any money received by a recipient pursuant to this subsection (1)(a)(II.5). The imposition of a civil monetary penalty by the state department may be appealed administratively.  (A.5) A provider of medical services who, within thirty days of notification by the state department, or longer if approved by the state department, voids the bill, returns any amount unlawfully received, and makes every reasonable effort to resolve any collection actions so that the recipient or the estate of the recipient has no adverse financial consequences is not subject to the provisions of subsection (1)(a)(II.5)(A) of this section.    Recipient income applied pursuant to section 25.5-4-209 (1) shall not disqualify any recipient, as defined in section 26-2-103 (8), C.R.S., from receiving benefits under this article, article 5 or 6 of this title, or public assistance under article 2 of title 26, C.R.S. If, at any time during the continuance of medical benefits, the recipient becomes possessed of property having a value in excess of that amount set by law or by the rules of the state department or receives any increase in income, it is the duty of the recipient to notify the county department thereof, and the county department may, after investigation, either revoke such medical benefits or alter the amount thereof, as the circumstances may require.    Any medical assistance paid to which a recipient was not lawfully entitled shall be recoverable from the recipient or the estate of the recipient by the county as a debt due the state pursuant to section 25.5-1-115, but no lien may be imposed against the property of a recipient on account of medical assistance paid or to be paid on the recipient's behalf under this article or article 5 or 6 of this title, except pursuant to the judgment of a court of competent jurisdiction or as provided by section 25.5-4-302.    If any such medical assistance was obtained fraudulently, interest shall be charged and paid to the county department on the amount of such medical assistance calculated at the legal rate and calculated from the date that payment for medical services rendered on behalf of the recipient is made to the date such amount is recovered.       Any overpayment to a provider, including those of personal needs funds made pursuant to section 25.5-6-206, are recoverable regardless of whether the overpayment is the result of an error by the state department, a county department of human or social services, an entity acting on behalf of either department, or by the provider or any agent of the provider as follows:     If the state department makes a determination that such overpayment has been made as a result of the provider's false representation, the state department may collect the overpayment, plus a civil monetary penalty equal to one-half the amount of the overpayment, and interest on the sum of the two amounts accruing at the statutory rate from the date the overpayment is identified, by the means specified in this subsection (2). Such sum may be collected for up to the amount of time prescribed in section 13-80-103.5, C.R.S., after the overpayment is identified. Amounts remaining uncollected for more than the time period prescribed in section 13-80-103.5, C.R.S., after the last repayment was made may be considered uncollectible. For the purposes of this subparagraph (I), “false representation” means an inaccurate statement that is relevant to a claim for reimbursement and is made by a provider who has actual knowledge of the truth of false nature of the statement or by a provider acting in deliberate ignorance of or with reckless disregard for the truth of the statement. A provider acts with reckless disregard for truth if the provider fails to maintain records required by the department or if the provider fails to become familiar with rules, manuals, and bulletins issued by the department, board, or the department's fiscal agent. (a) (I) If the state department makes a determination that such overpayment has been made as a result of the provider's false representation, the state department may collect the overpayment, plus a civil monetary penalty equal to one-half the amount of the overpayment, and interest on the sum of the two amounts accruing at the statutory rate from the date the overpayment is identified, by the means specified in this subsection (2). Such sum may be collected for up to the amount of time prescribed in section 13-80-103.5, C.R.S., after the overpayment is identified. Amounts remaining uncollected for more than the time period prescribed in section 13-80-103.5, C.R.S., after the last repayment was made may be considered uncollectible. For the purposes of this subparagraph (I), “false representation” means an inaccurate statement that is relevant to a claim for reimbursement and is made by a provider who has actual knowledge of the truth of false nature of the statement or by a provider acting in deliberate ignorance of or with reckless disregard for the truth of the statement. A provider acts with reckless disregard for truth if the provider fails to maintain records required by the department or if the provider fails to become familiar with rules, manuals, and bulletins issued by the department, board, or the department's fiscal agent.    If the state department makes a determination that such overpayment has been made for some other reason than a false representation by the provider specified in subparagraph (I) of this paragraph (a), the state department may collect the amount of overpayment, plus interest accruing at the statutory rate from the date the provider is notified of such overpayment, by the means specified in this subsection (2). Pursuant to the criteria established in rules promulgated by the state board, the state department may waive the recovery or adjustment of all or part of the overpayment and accrued interest specified in this subparagraph (II) if it would be inequitable, uncollectible or administratively impracticable; except that no action shall be taken against a recipient of medical services initially determined to be eligible pursuant to section 25.5-4-205 if the overpayment occurred through no fault of the recipient. Amounts remaining uncollected for more than five years after the last repayment was made may be considered uncollectible.       In order to collect the amounts specified in paragraph (a) of this subsection (2), the state department may withhold subsequent payments to which the provider is or becomes entitled and apply the amount withheld as an offset. The state board shall establish in rules the rate at which an overpayment may be offset, with provision for a reduction of such rate upon a good cause shown by the provider that the rate at which payment will be withheld will result in an undue hardship for the provider. In determining whether to grant a good cause reduction, the state department shall consider the impact of collecting the amount provided by state board rules on the quality of patient care and the financial viability of the provider. The state department may also take such other steps administratively as are available for the collection of the amounts specified in paragraph (a) of this subsection (2).    If a provider defaults on repayment of the amounts specified in paragraph (a) of this subsection (2), the state department may bring a suit against the provider in the appropriate court. Court costs shall not be assessed against the state department but shall be assessed against the provider if the court finds in favor of the state department. Any costs collected by the state department shall be paid into the registry of the court. Once the amount has been reduced to judgment, the state department may proceed with all available postjudgment remedies.    Repealed.    Any provider adversely affected by actions taken pursuant to this subsection (2), except when a suit is filed against the provider pursuant to paragraph (c) of this subsection (2), may appeal the determination of the state department pursuant to the provisions in section 24-4-105, C.R.S.    If the state department, either directly or through a contracting agent, undertakes a review or an audit of a provider to determine whether an overpayment has been made to that provider, the review or audit shall be subject to the procedures required in subsection (3) of this section.         A review or audit of a provider is subject to the following procedures:   The reviewer or auditor shall conduct a review or audit in accordance with applicable state and federal law.    The reviewer or auditor shall apply uniform standards and procedures to each class of providers subject to a review or an audit to determine an overpayment.    The reviewer or auditor shall prepare findings for the entire period under review or audit, and a provider shall be subject to only one demand for repayment in connection with the review or audit.    Prior to a review or audit requiring an inspection of a provider's records, the reviewer or auditor, or a qualified agent contracted with the state department pursuant to subsection (3)(b) of this section, shall confirm the provider's contact information with the provider. After confirming the provider's contact information, the reviewer or auditor, or qualified agent, shall notify the provider of additional information concerning the review or audit, including instructions, correspondence timelines, and a state department contact for the provider to notify if the provider does not receive the written request for records. The reviewer or auditor shall initiate each review or audit requiring an inspection of the provider's records by delivering to the provider not less than ten business days prior to the commencement of the audit a written request through both e-mail and certified mail describing in detail such records and offering the provider the option of providing either a reproduction of such records or inspection by the reviewer or auditor at the provider's site. The request must also clearly define milestone dates pertaining to records' requested due dates, permissible extensions of dates, the timelines for informal reconsideration, and deadlines for requesting a formal appeal. The records subject to the request must be limited to records directly related to claims for reimbursement submitted by the provider. Prior to a qualified agent commencing any review or audit, the state department shall ensure providers understand the relationship between the state department and the qualified agent and how to contact the qualified agent. In the event such records are available from a county department of human or social services or another agency, subdivision, or contractor of the state, the reviewer or auditor shall request such records from such other agencies as may be appropriate prior to making a request to the provider. The reviewer or auditor shall conduct on-site inspections at reasonable times during regular business hours, and the reviewer or auditor shall make arrangements necessary for the reproduction of such records on site. If the provider chooses to provide a reproduction of the records requested by the reviewer or auditor instead of on-site inspection, the reviewer or auditor shall give the provider a reasonable period of time, not less than forty-five days, to provide such records, taking into account the scope of the request, the time frame covered, and the reproduction arrangements available to the provider. (IV.5) At the request of the provider, the reviewer or auditor shall conduct an in-person or telephonic interview with the provider prior to the preparation of a preliminary draft of the report of the reviewer or auditor at which the reviewer or auditor and the provider shall discuss:   The findings of the reviewer or auditor;    Any documentation useful for the provider to refute the findings of the reviewer or auditor; and    The next steps in the review or audit process.       A physician's record or other order for health-care services, drugs, or medicinal supplies in a form transmitted electronically shall be sufficient to validate the provider's records regarding the ordering of the health-care services, drugs, or medicinal supplies.    Whenever possible, the reviewer or auditor shall base a determination of an overpayment to a provider upon a review of actual records of the department, its agents, or the provider. In the event sufficient records are not available to the reviewer or auditor, an overpayment determination may be based upon a sampling of records so long as the sampling and any extrapolation therefrom is reasonably valid from a statistical standpoint and is in accordance with generally accepted auditing standards.    If a reviewer or auditor determines that there has been an overpayment to the provider, then, at the time demand for repayment is made, the state department shall offer the provider an informal reconsideration of the review or audit findings. The state department shall notify the provider in writing of the right to an informal reconsideration prior to implementing any recovery of an overpayment and give the provider an opportunity to request an informal reconsideration. In the event informal reconsideration is requested or a formal appeal is filed pursuant to subparagraph (VIII) of this paragraph (a), the state department shall not implement recovery of the overpayment until such informal reconsideration or formal appeal has been completed. Within forty-five days after the request for an informal reconsideration, the state department shall render a decision on the request and notify the provider of the decision. The notification shall include information concerning requesting a formal appeal, including informing the provider that the request must be filed within thirty days after the date of the state department's decision on the request for an informal reconsideration. If the state department is unable to render a decision on the request for informal reconsideration within forty-five days after the request, within forty-five days after the request, the state department shall notify the provider of its inability to complete the decision and shall include information concerning requesting a formal appeal, including informing the provider that the request must be filed within thirty days after the receipt of the notification that the state department is unable to render a decision. For purposes of this subparagraph (VII), an informal reconsideration shall be considered final thirty days after the earlier of the date on which the provider withdraws its request or the date on which the state department issues a written decision on the request.    In accordance with paragraph (e) of subsection (2) of this section, any provider adversely affected by the actions of the state department or its contracting agent in connection with a review or an audit, including whether the state department or its contracting agent adhered to the provisions of this subsection (3) in making an overpayment determination, may appeal such actions pursuant to the provisions of section 24-4-105, C.R.S.  (a.5) Any additional review or audit procedures shall be adopted by rule of the state board and shall be specifically referenced in any contract with a provider.        The state department is authorized to engage the services of a qualified agent through a competitive contract issued pursuant to the state's procurement code for the purpose of conducting a review or audit of a provider to assist in determining whether there has been an overpayment to a provider and the amount of that overpayment. In addition to such terms and conditions as the state department may deem necessary, any contract shall be subject to the requirements for conducting a review or an audit in accordance with paragraph (a) of this subsection 3. The state department is further authorized to enter into a contract with a qualified agent for the purpose of conducting a review or an audit of a provider that provides that the compensation of the contracting agent shall be contingent and based upon a percentage of the amount of the recovery collected from the provider. A contract issued by the state department for the purpose of conducting a review or an audit of a provider to determine whether the provider has received an overpayment shall also be subject to the following conditions:   The compensation paid to the contracting agent under a contingency-based contract shall not exceed eighteen percent of the amount finally collected from the provider overpayment, and the state department may establish a limit on the amount of annual compensation that may be paid to a contracting agent under a contingency-based contract and may further establish a limit on the amount that may be paid to a contracting agent under a contingency-based contract for recovery from any one provider.    Reimbursement of the contracting agent's costs in performing the review or audit under a contingency-based contract shall be deemed included in the percentage compensation due the agent under the contract.    No employee or agent of the contracting agent involved in the performance of a contingency-based contract shall be compensated by the contracting agent based upon the amount recovered under the contract.    The state department shall retain all authority for providing notice and otherwise making demand upon a provider for recovery of an overpayment, and the state department shall review and approve any written demand, request, or determination by the contracting agent regarding a review or an audit of a provider under this subsection 3.    In any contingency-based contract authorized pursuant to this paragraph (b), the state of Colorado shall not be obligated to pay the contracting agent for amounts not actually collected from the provider. (3.5)   Prior to the start of a contract to review or audit providers, the state department is encouraged to meet with organizations or associations of providers to educate providers on the review or audit process and the responsibilities of both the providers and the state department throughout the review or audit process. The state department is also encouraged to prepare an annual report on common findings following a contract to review or audit providers and distribute the report to organizations or associations of providers. The annual report should include information to prevent similar findings in future reviews or audits and should direct providers to resource information.    Repealed.             If medical assistance is furnished to or on behalf of a recipient pursuant to the provisions of this article and articles 5 and 6 of this title for which a third party is liable, the state department has an enforceable right against such third party for the amount of such medical assistance, including the lien right specified in subsection (5) of this section. Whenever the recipient has brought or may bring an action in court to determine the liability of the third party, the state department, without any other name, title, or authority to enforce the state department's right, may enter into appropriate agreements and assignments of rights with the recipient and the recipient's attorney, if any. Any such agreement shall be filed with the court in which such an action is pending. The attorney named in such an agreement upon designation as a special assistant attorney general by the attorney general shall have the right to prove both the recipient's claim and the state department's claim. The state department, without any other name, title, or authority, may take any necessary action to determine the existence and amount of the state department's claims under this section, whether such claims are founded on judgment, contract, lien, or otherwise, and take any other action that is appropriate to recover from such third parties. To enforce such right, the attorney general, pursuant to section 24-31-101, C.R.S., on behalf of the state department may institute and prosecute, or intervene of right in legal proceedings against the third party having legal liability, either in the name of the state department or in the name of the recipient or his or her assignee, guardian, personal representative, estate, or survivors. When the state department intervenes in legal proceedings against the third party, it shall not be liable for any portion of the attorney fees or costs of the recipient.      When the state department has furnished medical assistance to or on behalf of a recipient pursuant to the provisions of this article, and articles 5 and 6 of this title, for which a third party is liable, the state department shall have an automatic statutory lien for all such medical assistance. The state department's lien shall be against any judgment, award, or settlement in a suit or claim against such third party and shall be in an amount that shall be the fullest extent allowed by federal law as applicable in this state, but not to exceed the amount of the medical assistance provided.    No judgment, award, or settlement in any action or claim by a recipient to recover damages for injuries, where the state department has a lien, shall be satisfied without first satisfying the state department's lien. Failure by any party to the judgment, award, or settlement to comply with this section shall make each such party liable for the full amount of medical assistance furnished to or on behalf of the recipient for the injuries that are the subject of the judgment, award, or settlement.    Except as otherwise provided in this article, the entire amount of any judgment, award, or settlement of the recipient's action or claim, with or without suit, regardless of how characterized by the parties, shall be subject to the state department's lien.    Where the action or claim is brought by the recipient alone and the recipient incurs a personal liability to pay attorney fees, the state department will pay its reasonable share of attorney fees not to exceed twenty-five percent of the state department's lien. The state department shall not be liable for costs.    The state department's right to recover under this section is independent of the recipient's right.       When the applicant or recipient, or his or her guardian, executor, administrator, or other appropriate representative, brings an action or asserts a claim against any third party, such person shall give to the state department written notice of the action or claim by personal service or certified mail within fifteen days after filing the action or asserting the claim. Failure to comply with this subsection (6) shall make the recipient, legal guardian, executor, administrator, attorney, or other representative liable for the entire amount of medical assistance furnished to or on behalf of the recipient for the injuries that gave rise to the action or claim. The state department may, after thirty days' written notice to such person, enforce its rights under subsection (5) of this section and this subsection (6) in the district court of the city and county of Denver; except that liability of a person other than the recipient shall exist only if such person had knowledge that the recipient had received medical assistance or if excusable neglect is found by the court. The court shall award the state department its costs and attorney fees incurred in the prosecution of any such action.    When a legally responsible relative of the recipient agrees or is ordered to provide medical support or health insurance coverage for his or her dependents or other persons, and such dependents are applicants for, recipients of, or otherwise entitled to receive medical assistance pursuant to this article and articles 5 and 6 of this title, the state department shall be subrogated to any rights that the responsible persons may have to obtain reimbursement from a third party or insurance carrier for the cost of medical assistance provided for such dependents or persons. Where the state department gives written notice of subrogation, any third party or insurance carrier liable for reimbursement for the cost of medical care shall accord to the state department all rights and benefits available to the responsible relative that pertain to the provision of medical care to any persons entitled to medical assistance pursuant to this article and articles 5 and 6 of this title for whom the relative is legally responsible.    All recipients of medical assistance under the medicaid program shall be deemed to have authorized their attorneys, all third parties, including but not limited to insurance companies, and providers of medical care to release to the state department all information needed by the state department to secure and enforce its rights under subsections (4) and (5) of this section.    Nothing in part 6 of article 4 of title 10, C.R.S., shall be construed to limit the right of the state department to recover the medical assistance furnished to or on behalf of a recipient as the result of the negligence of a third party.    No action taken by the state department pursuant to subsection (4) of this section or any judgment rendered in such action shall be a bar to any action upon the claim or cause of action of the applicant or recipient or his or her guardian, personal representative, estate, dependent, or survivors against the third party having legal liability, nor shall any such action or judgment operate to deny the applicant or recipient the recovery for that portion of his or her medical costs or other damages not provided as medical assistance under this article or article 5 or 6 of this title.      The state department shall have a right to recover any amount of medical assistance paid on behalf of a recipient because:   The trustee of a trust for the benefit of the recipient has used the trust property in a manner contrary to the terms of the trust;    A person holding the recipient's power of attorney has used the power for purposes other than the benefit of the recipient.       To enforce the right under this subsection (11), the county or state department may institute or intervene in legal proceedings against the trustee or person holding the power of attorney. Any amount of medical assistance recovered pursuant to this subsection (11) shall be distributed between the state and county in proportion to the amount of medical assistance paid by each respectively, if any.    No action taken by the county or state department pursuant to this subsection (11) or any judgment rendered in such action or proceeding shall be a bar to any action upon the claim or cause of action of the recipient or his or her guardian, personal representative, estate, dependent, or survivors against the trustee or person holding the power of attorney.         An entity that provides managed care, as defined in section 25.5-5-403, that has entered into a risk contract with the state department shall have the same rights of the department set forth in this section except with respect to the rights described in subsections (5) and (6) of this section. In addition, the attorney general may not enforce the rights set forth in this subsection (12). Venue for an action brought by or on behalf of an entity pursuant to this subsection (12) shall be governed by the Colorado rules of civil procedure.    Within fifteen days after filing an action or asserting a claim against a third party, a recipient under a managed care plan or a guardian, executor, administrator, or other appropriate representative of the recipient shall provide to the entity that administers the managed care plan written notice of the action or claim. Notice shall be by personal service or certified mail.    In cases where the state department has recovery rights against a third party pursuant to subsections (4) and (5) of this section and an entity that provides managed care has subrogation rights against the same party pursuant to paragraph (a) of this subsection (12), the recovery rights of the state department shall take precedence over the rights of the managed care plan.       To the extent allowable under federal law, the state department shall recover from a legal immigrant's sponsor all medical assistance paid on behalf of a sponsored legal immigrant who is enrolled in the medical assistance program.    Notwithstanding any provision of this section to the contrary:     The state department, or the state department's designated agent, shall conduct pre-enrollment and post-enrollment site visits of providers who are designated as moderate or high categorical risks to the medicaid program. The purpose of the site visit is to verify that the information submitted to the state department is accurate and to determine compliance with federal and state enrollment requirements. (a) (I) The state department, or the state department's designated agent, shall conduct pre-enrollment and post-enrollment site visits of providers who are designated as moderate or high categorical risks to the medicaid program. The purpose of the site visit is to verify that the information submitted to the state department is accurate and to determine compliance with federal and state enrollment requirements.    As established in rules promulgated by the state board, the state department may waive pre-enrollment and post-enrollment site visits of providers if the site visits are conducted by medicare or other federally designated entities.    A provider is designated as a limited, moderate, or high categorical risk pursuant to the medicare program and federal regulations. If a provider is not designated in a risk category pursuant to the medicare program and federal regulations, the provider's risk category shall be established pursuant to rules promulgated by the state board.       A provider enrolled in the medicaid program shall permit the centers for medicare and medicaid services or its agent or designated contractors and the state department or its agent to conduct unannounced, on-site inspections of any and all provider locations. Payment for any agent designated by the state department to perform on-site inspections shall not be based on any recoveries paid to the state department by a provider for violations discovered as a result of the on-site inspection.         The state department may request a written response from any provider who fails to comply with the rules, manuals, or bulletins issued by the state department, state board, or the state department's fiscal agent, or from any provider whose activities endanger the health, safety, or welfare of medicaid recipients. The written response must describe how the provider will come into and ensure future compliance. If a written response is requested, a provider has thirty days, or longer if approved by the state department, to submit the written response.    If the provider does not agree with the state department's findings that resulted in the request issued pursuant to subsection (15)(a) of this section, then the provider's written response must include an explanation and specific reasons for the provider's disagreement.         (B) In order to establish a claim for the civil monetary penalty established by subsection (1)(a)(II.5)(A) of this section, a recipient or the estate of a recipient, or a person acting on behalf of a recipient or the estate of a recipient, shall notify the state department.   (C) The provisions of this subparagraph (II.5) shall not apply to a long-term care facility licensed pursuant to section 25-3-101 , C.R.S.   (D) The provisions of subsection (1)(a)(II.5)(A) of this section shall not apply if a recipient knowingly misrepresents his or her medicaid coverage status to a provider of medical services and the provider submits documentation to the state department that the recipient knowingly misrepresented his or her medicaid coverage status and the documentation clearly establishes a good cause basis for granting an exception to the provider.   History. Source: L. 2006: Entire article added with relocations, p. 1829, § 7, effective July 1; (1)(a)(II.5) added, p. 107, § 1, effective January 1, 2007. L. 2007: (3)(a)(IV) and (3)(a)(VII) amended and (3)(a)(IV.5), (3)(a.5), and (3.5) added, pp. 1467, 1469, 1468, §§ 1, 3, 2, effective May 30. L. 2009: (5)(a) and (5)(c) amended,(HB 09-1191), ch. 100, p. 372, § 1, effective August 5. L. 2010: (2)(a)(II) amended,(SB 10-167), ch. 296, p. 1378, § 7, effective May 26. L. 2013: (14) added,(HB 13-1068), ch. 119, p. 405, § 1, effective April 8. L. 2017: (1)(a)(II.5)(A) and (1)(a)(II.5)(B) amended and (1)(a)(II.5)(A.5), (1)(a)(II.5)(D), and (15) added,(HB 17-1139), ch. 376, p. 1942, § 2, effective June 6. L. 2018: IP(2), IP(3)(a), and (3)(a)(IV) amended,(SB 18-092), ch. 38, p. 444, § 110, effective August 8. L. 2021: (2)(d) repealed,(SB 21-055), ch. 12, p. 78, § 14, effective March 21; (3)(a)(IV) amended,(SB 21-022), ch. 167, p. 931, § 1, effective September 7.    Editor's note:    This section is similar to former § 26-4-403 as it existed prior to 2006.    Subsection (1)(a)(II.5) was enacted as § 26-4-403 (1)(a)(II.5) in House Bill 06-1079 but was relocated due to its harmonization with this section as it appeared in Senate Bill 06-219.    Subsection (3.5)(b)(II) provided for the repeal of subsection (3.5)(b), effective July 1, 2011. (SeeL. 2007, p. 1468.)     Cross references:   For the legislative declaration in SB 10-167, see section 1 of chapter 296, Session Laws of Colorado 2010. For the legislative declaration in HB 17-1139, see section 1 of chapter 376, Session Laws of Colorado 2017. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.   ANNOTATION   Law reviews. For article, “Collecting Pre- and Post-Judgment Interest in Colorado: A Primer”, see 15 Colo. Law. 753 (1986). For article, “An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado”, see 15 Colo. Law. 990 (1986). For article, “Trust Protection of Personal Injury Recoveries from Public Creditors”, see 19 Colo. Law. 2187 (1990). For article, “Health Care Bankruptcy Issues: Provider Agreements as Executory Contracts”, see 24 Colo. Law. 765 (1995). For article, “Medicaid Estate Recovery: The Role of the Advocate”, see 28 Colo. Law. 51 (April 1999).   Annotator's note. Since § 25.5-4-301 is similar to § 26-4-403 as it existed prior to the 2006 amendments relocating article 4 of title 26 to title 25.5 and § 26-4-403 is similar to § 26-4-112 as it existed prior to the 1991 repeal and reenactment of article 4 of title 26, relevant cases construing those provisions have been included in the annotations to this section.   Colorado's medicaid lien statute is not inconsistent with the anti-lien provisions of the federal Medicaid Act. It is consistent with the federal medicaid statute's anti-lien provisions as interpreted by the U.S. supreme court in Arkansas Dept. of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006). I.P. ex rel. Cardenas v. Henneberry, 795 F. Supp. 2d 1189 (D. Colo. 2011 ).   Department of health care policy and financing's lien on settlement proceeds from medicaid recipient's malpractice suit is tantamount to a forced assignment of the right to recover that portion of the settlement that represents payments for medical care, which, under Ahlborn, is consistent with both the third-party liability provisions and the anti-lien provisions in the federal medicaid statute. I.P. ex rel. Cardenas v. Henneberry, 795 F. Supp. 2d 1189 (D. Colo. 2011 ).   The department can seek reimbursement from that portion of medicaid recipient's settlement proceeds that represents medical expenses -- past and future -- up to the total amount it spent on medicaid recipient's behalf as of the date of the settlement. I.P. ex rel. Cardenas v. Henneberry, 795 F. Supp. 2d 1189 (D. Colo. 2011 ).   Actions necessary for recovery of expenses by department of social services. The Colorado department of social services has a right and duty to recover expenses its beneficiaries incur by reason of personal injuries they sustain in accidents, but to do so, it must either join in the action against the wrongdoer, assign its right to the recipient, or file its own action. Gomez v. Black, 32 Colo. App. 332, 511 P.2d 531 (1973).   A county department is not precluded from recovering medicaid benefits to which a medicaid recipient is not entitled and which were paid erroneously before adequate notice of termination. Nededog v. Colo. Dept. of Health Care Policy & Fin., 98 P.3d 960 (Colo. App. 2004).   Department of social services may set off from payments to providers of services the amounts of past overpayments. Smith, Harst & Assoc. v. D.S.S., 780 P.2d 20 (Colo. App. 1989).   This section allows the state to assign its rights to a claim for medical expenses paid by the state's medicaid program only to the recipient of medicaid or the recipient's attorney. Therefore a deceased recipient's family members were not proper assignees. Kildahl v. Tagge, 942 P.2d 1283 (Colo. App. 1996).   The state has an independent right of action that cannot be denied because of any negligence of a recipient. Tucker v. Gorman, 944 P.2d 653 (Colo. App. 1997), aff'd, 961 P.2d 1126 (Colo. 1998).   However, so long as the recipient's negligence is not imputed to the state so as to deny the state's claim, the recipient's negligence may be considered in determining the extent of a party's liability for the state's expenditures. Tucker v. Gorman, 944 P.2d 653 (Colo. App. 1997), aff'd on other grounds, 961 P.2d 1126 (Colo. 1998).   This section does not provide for waiver of claims to recover medicaid benefits paid erroneously to a recipient, nor does it cross-reference any waiver regulation of the department of human services. Nededog v. Colo. Dept. of Health Care Policy & Fin., 98 P.3d 960 (Colo. App. 2004).   The method used to calculate apportionment of a third-party settlement for purposes of Medicaid reimbursement for medical expenses must not be arbitrary or one-size-fits-all and must employ reasonable means. Dept. of Health Care Policy & Fin. v. S.P., 2015 COA 81 , 356 P.3d 1033.   It was not clearly erroneous for the court, in applying a proportionate allocation method, to rely on the amount paid to medical providers by the state for medical expenses rather than the amount billed by the providers. Colo. Dept. of Health Care Policy & Fin. v. S.P., 2015 COA 81 , 356 P.3d 1033.   The trial court did not err in applying its formula for apportioning medical expenses to the gross amount of the settlement, rather than the amount of the settlement net attorney fees. Dept. of Health Care Policy & Fin. v. S.P., 2015 COA 81 , 356 P.3d 1033.