West Virginia Code of State Rules › Agency 197 - Traumatic Brain And Spinal Cord Injury Rehabilitation Fund › Title 197 - LEGISLATIVE RULE WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY REHABILITATION FUND › Series 197-01 - WV Traumatic Brain And Spinal Cord Injury Rehabilitation Fund › Section 197-1-4 - Fund As Payer of Last Resort

Current through Register Vol. XLI, No. 28, July 12, 2024
4.1. Moneys
				expended for services described under this rule shall be as a payer of last
				resort and only for citizens of this state. A person shall use comparable
				benefits and services that are available prior to the expenditure of moneys
				available to that individual through the Fund. For the purposes of this rule,
				payer of last resort means that the application review team has determined:
(1) that the individual requesting services
				has applied for and been denied services by all other agencies mandated to
				provide thee services;
(2) that the
				individual has been denied insurance benefits or payments for the services; or,
(3) the application review team has
				determined it would be futile to require the individual to apply for services
				from another agency. Provided that, funding may be provided for services under
				this rule to an individual who needs the services pending a final appeal
				decision from another agency or pending an appeal from a denied insurance
				benefit. Provided further that the Fund is entitled to and shall seek
				reimbursement from another agency or insurance carrier for services provided by
				the Fund during any appeal process if the appeal is resolved in favor of a fund
				recipient.
4.1.a. Every eligible
				person submitting an application for funding for services under this rule shall
				agree and assign to the Board his or her right to recovery from personal
				insurance or other sources, including, but not limited to, liable third
				parties, to the extent of the cost of services paid for by the Fund. This
				assignment of rights does not extend to benefits expressly exempt under federal
				or other state law. At the time the application is made, the Division of
				Rehabilitation Services shall include a statement along with the application
				that explains that the applicant has assigned all these rights and the legal
				implications of making the assignment as provided in this section.
4.1.b. If assistance is paid or will be paid
				to a service provider on behalf of a recipient of services under this rule, and
				another person is legally liable for the expense, either pursuant to contract,
				negligence or otherwise, the Board may recover full reimbursement from any
				award or settlement for the assistance from the other person, or from the
				recipient of the assistance if he or she has been reimbursed by the other
				person.
4.1.c. The Board shall be
				assigned the rights of the recipient against the person who is liable, but only
				to the extent of the reasonable value of the assistance paid for which the
				recipient has received recovery for damages. When an action or claim is brought
				by a recipient or by someone on his or her behalf against a third party who may
				be liable for the injury or disability, any settlement, judgment or award
				obtained is subject to the claim of the Board for reimbursement of an amount
				sufficient to reimburse the Fund the full amount of benefits paid on behalf of
				the recipient. The claim of the board assigned by such recipient shall not
				exceed the amount paid by the Fund on behalf of the recipient.
4.1.d. The right of subrogation created in
				this rule includes all portions of the cause of action, by settlement,
				compromise, judgment or award, notwithstanding any settlement allocation or
				apportionment that purports to dispose of portions of the cause of action not
				subject to the subrogation. Any settlement, compromise, judgment or award that
				excludes or limits the cost of services or care shall not preclude the Board
				from enforcing its rights under this section. The Board may compromise, settle
				and execute a release of any claim, in whole or in part.
4.1.e. Whether by judgment or settlement,
				from the amount required to be paid to the Fund, there shall be deducted the
				attorney fees attributable to the amount in accordance with and in proportion
				to the fee arrangement made between the recipient and his or her attorney of
				record so that the Fund shall bear the pro rata portion of the attorney fees.
				Nothing in this section precludes any person who has received assistance from
				the Fund from settling any cause of action which he or she may have against
				another person and delivering to the Board, from the proceeds of the
				settlement, the sums received by him or her from the Fund or paid by the Fund
				for his or her assistance. If the other person is aware of or has been informed
				of the interest of the Board in the matter, it is the duty of the person to
				whose benefit the release inures to withhold as much of the settlement as may
				be necessary to reimburse the Board to the extent of its interest in the
				settlement.
4.1.f. No judgment,
				award of or settlement in any action or claim by a recipient of services under
				this rule to recover damages in which the Board has an interest, shall be
				satisfied without first giving the Board notice and reasonable opportunity to
				establish its interest. The Board has sixty days from receipt of the written
				notice to advise the recipient or his or her representative in writing of the
				Board's desire to establish its interest through the assignment. If no written
				intent is received within the sixty-day period, then the recipient may proceed
				and in the event of full recovery forward to the Board the portion of the
				recovery proceeds less the Board's share of attorney's fees and costs expended
				in the matter. In the event of less than full recovery the recipient and the
				Board shall agree as to the amount to be paid to the Board for its
				claim.
4.1.g. If there is no
				recovery, the Fund is under no circumstances liable for any costs or attorneys
				fees expended in the matter. If, after being notified in writing of a
				subrogation claim and possible liability of the recipient, guardian, attorney
				or personal representative for failure to subrogate the Board, a recipient, his
				or her guardian, attorney or personal representative disposes of the funds
				representing the judgment, settlement or award, without the written approval of
				the Board, that person is liable to the Board for any amount that, as a result
				of the disposition of the fund, is not recoverable by the Board. In the event
				that a controversy arises concerning the subrogation claims by the Board, an
				attorney shall interplead, pursuant to rule twenty-two of the rules of civil
				procedure, the portion of the recipient's settlement that will satisfy the
				Board exclusive of attorneys fees and costs regardless of any contractual
				arrangement between the client and the attorney.