Printable Format39-719a. Recovery of medical assistance paid; obligation of third party; payment by secretary secondary costs paid proportionately by parties as determined by court. (a) Where medical assistance has been paid by the secretary and a third party has a legal obligation to pay such medical expenses to or on behalf of the recipient, the secretary may recover the same from the recipient or from the third party and shall be in all respects subrogated to the rights of the recipient in such cases except as provided under K.S.A. 39-786 and 39-787, and amendments thereto, or under section 303 and amendments thereto of the federal medicare catastrophic coverage act of 1988, whichever is applicable. Payment of medical assistance by the secretary shall be secondary to any other insurance coverage or third party with a legal obligation to pay such medical expenses to or on behalf of the recipient.
(b) Pursuant to this section unless otherwise agreed, the court shall fix attorney fees, which shall be paid proportionately by the secretary and the injured person, such person's dependents or personal representatives, in the amounts determined by the court. Attorney fees to be paid by the secretary shall be fixed by the court in an amount not to exceed ⅓ of the medical assistance recovered pursuant to subsection (a) for cases settled prior to trial, or in an amount not to exceed ⅖ of the medical assistance recovered pursuant to subsection (a) in cases when a trial is convened.
(c) In the event of a recovery pursuant to K.S.A. 60-258a, and amendments thereto, the secretary's right of subrogation shall be reduced by the percentage of negligence attributable to the injured person.
History: L. 1953, ch. 224, § 1; L. 1967, ch. 245, § 7; L. 1969, ch. 226, § 6; L. 1970, ch. 168, § 1; L. 1973, ch. 186, § 12; L. 1988, ch. 143, § 9; L. 1989, ch. 124, § 3; L. 1991, ch. 119, § 1; July 1.
Cross References to Related Sections:
Duty to support certain patients, see 59-2006, 76-1936.
Law Review and Bar Journal References:
Nature, determination and effect upon homestead law of claim considered, opinion of attorney general, 2 K.L.R. 212, 213 (1953).
Retrospective operation of statute considered, opinion of attorney general, 2 K.L.R. 215 (1953).
"More Goo for Our Tort Stew: Implementing the Kansas Collateral Source Rule," James Concannon and Ron Smith, 58 J.K.B.A. No. 2, 19, 23, 28 (1989).
"Medicaid Eligibility For Nursing Home Care: Understanding The New Eligibility Rules," Patrick H. Donahue, 59 J.K.B.A. No. 4, 26, 27 (1990).
"Practitioner's Guide To Subrogation Liens And Reimbursement Rights," Gary D. White, Jr., J.K.T.L.A. Vol. XVIII, No. 4, 5, 6 (1995).
"Liens, Liens & More Liens," David P. Calvert, J.K.T.L.A. Vol. 25, No. 5, 10 (2002).
"Improperly Divorced From Its Roots: The Rationales of the Collateral Source Rule and Their Implications for Medicare and Medicaid Write-Offs," Guillermo Gabriel Zorogastua, 55 K.L.R. 463 (2007).
"The Ahlborn Case and Its Implications for Medicaid," Daniel B. Giroux, J.K.A.J Vol. 31, No. 2, 8 (2007).
"Personal Injury Law Meets Medicaid Law: K.S.A. 39-719a Recoveries in Kansas," Robert R. Hiller Jr., 78 J.K.B.A. No. 1, 39 (2009).
CASE ANNOTATIONS
1. Claim for assistance supplied previously deceased spouse is a demand against estate of surviving spouse; not barred by nonclaim statute. In re Estate of Schwarz, 197 Kan. 267, 268, 269, 270, 271, 272, 273, 416 P.2d 760.
2. Section construed; amount recoverable hereunder limited to the assistance furnished to either or both of a married couple during the marriage relationship. State Department of Social Welfare v. Dye, 204 Kan. 760, 761, 762, 763, 764, 466 P.2d 354.
3. Mentioned in case holding that probate court may charge the cost of administering a no-asset estate to the creditor who petitioned for administration of the estate. State Department of Social Welfare v. Emert, 205 Kan. 393, 394, 469 P.2d 435.
4. Parent receiving ADC assistance exempt from repayment of child's medical expenses pursuant to K.S.A. 39-718b(b)(2). State ex rel. Secretary of SRS v. Guy, 23 Kan. App. 2d 943, 937 P.2d 1252 (1997).
5. Liability of parents to SRS for reimbursement of birth expenses includes medical expenses; assistance construed. State ex rel. Secretary of SRS v. Cunningham, 24 Kan. App. 2d 587, 588, 948 P.2d 1140 (1997).
6. State statutory subrogation right in negligence action not subject to reduction under equitable subrogation principles. Copeland by Copeland v. Toyota Motor Sales U.S.A., 136 F.3d 1249, 1251, 1253 (1997).
7. Cited; developmentally disabled adult's medicaid benefits terminated; exhaustion of state proceedings held non-applicable to remedial proceedings. Brown ex rel. Brown v. Day, 555 F.3d 882, 887 (2009).