Ahlborn is Back – Retroactively. What it Means.

Nearly every trial lawyer association has put out an alert by now: “Ahlborn is back!” “Permanent & Retroactive Ahlborn ‘Fix’” “Ahlborn… Resurrected?!” You get it. We get it. Everybody gets it. Ahlborn, it’s a thing again.

But what does that mean for you?

First – a quick history. The Ahlborn case involved the plaintiff arguing that Arkansas Medicaid recipient could only recover the portion of her settlement that represents payment for past medical expenses. Arkansas Medicaid disagreed. But the Eastern District of Arkansas, Eight Circuit Court of Appeals, and Supreme Court of the United States all supported the plaintiff’s argument. Arkansas Medicaid was forced to accept 16.5% of the settlement as that was the portion representing past medical expenses.

Then, the 2013 Bipartisan Budget Act (“BBA”) overturned that decision. It granted Medicaid programs full reimbursement from all portions of the settlement. That provision was delayed multiple times until October 2017. Finally, the budget deal reached last week “permanently” stopped that provision. The holding in Ahlborn is law again.

Okay, Ahlborn is law. Meaning…?

Ahlborn is law means that Medicaid programs nationwide are restricted from assuming 100% of the proceeds are for past medical expenses. This means fair apportionment is necessary. Consider the ideas that Medicare cases like Benson v. Sebelius and Taransky v. Secretary of HHS tell us. You cannot simply say that your case did not include past medicals. Another analysis went to the Supreme Court in 2013: Wos v. E.M.A. That North Carolina case held against NC Medicaid’s irrebuttable statutory presumption that one-third of any tort recovery is attributable to medical expenses. North Carolina’s problem was two-fold: first, the assumption that one-third of a settlement is for medical expenses is dangerous on its own, and, second, that a plaintiff cannot even argue the one-third is wrong for his or her case.

How does this change status quo?

We believe state laws that set a limitation like North Carolina’s one-third or Michigan’s half of net are acceptable under Ahlborn so long as they are rebuttable.

We also believe that utilizing Ahlborn to its fullest advantages is not as simple as writing down percentages. You have to be ready to prove those percentages in a hearing. Medicaid programs will be aggressive – especially in larger cases. You may need future medical cost projections, lost wages (past and future) projections, pain and suffering projections, and past medical expense analyses.

Those past medical expense analyses can be broken down further to show out-of-pocket expenses, non-Medicaid payments, etc. so that even the portion of your case that is for past medicals may not be recoverable by Medicaid. There are many different ways to set up an Ahlborn Allocation. Just make sure to have your proof.

If you need help reducing Medicaid liens consider utilizing an expert service. For help with Medicaid Liens, Medicare Liens and any other Health Insurance Lien , please contact us at (844) MED LIEN or (844) 633-5436.