Current through Register Vol. XLI, No. 50, December 13, 2024
Section 197-1-4 - Fund As Payer of Last Resort4.1. 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.