NASP 2010 Subrogation Litigation: Skills & Management Conference The Third Rail of Subrogation: Medicare and Medicaid Nathan Krahn/Associate General Counsel Ingenix

Introduction and Agenda Medicare Secondary Payor Act Basics Impact of the MMA 2003 Does the MSP apply to Medicare Advantage Plans? Medicare Litigation Update Medicaid TPL Basics Post Ahlborn cases Medicaid Litigation Update Questions

Medicare Secondary Payor Act (MSP) Basics The Medicare Secondary Payer Act What it does: What rights it confers for subrogation/reimbursement: Code of Federal Regulations: Additional rights and procedures

Changes post-MMA of 2003 What changed? What is the practical impact?

National Litigation Update Published Cases Current Litigation

Medicaid: Third Party Liability (TPL) Structure TPL regime is required by federal law Common requirements and structures Many states have “state funds only” Medicaid-like” plans which are governed exclusively by state law.

Hottest topic in Medicaid recovery Alhborn and its impact Summary of Ahlborn: Ahlborn’s basic legal rule:

Post Ahlborn cases Several state and federal courts have used the Ahlborn analysis for Medicaid matters Several state and federal courts have not used Ahlborn, or at least distinguished Ahlborn’s holding.

National Litigation Update Cases dealing with scope and reach of Ahlborn

Conclusion MSP rights and powers are expanding and should expand under federal healthcare reform. Medicaid TPL laws will be strengthened due to state budget woes, so look for those changes.

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