Ketchum's key concern: Benjamin's decision wrongly concludes that West Virginia cannot recover money for future medical expenses.
Medicaid continues to pay for 16 hours of nursing care for the Hancock County child. His mother estimates that most of his case's true value, around $19.1 million, reflects future medical costs. She also expects that Medicaid will provide that future medical care, as the settlement was placed in a trust fund that does not count against his eligibility. But she balked at allowing the program to receive any money for future costs. The circuit judge and the Supreme Court both agreed.
"There is no question that [the department] may only be reimbursed for its past medical expenses," Benjamin wrote.
Ketchum argues that this finding misreads a U.S. Supreme Court opinion addressing Medicaid recoveries.
"West Virginia's taxpayers will be paying, through Medicaid, plaintiff's future medical bills that will total more than $19 million," Ketchum wrote. "The plaintiff will be able to use the millions put in the special needs trust as a supplement to enhance quality of life."
Tomblin's bill reflects Ketchum's recommendations for responding to the decision. It also adopts the process outlined by Benjamin in the majority ruling for resolving disputes over settlement terms. While focusing on recovering past medical expenses, the governor's proposal also mandates that any settlement or damage award identify a specific amount for covering future expenses as well.
"We're trying to update the statute, to put it in compliance with" the decision, said Peter Markham, Tomblin's chief lawyer. "We're also trying to address some of Justice Ketchum's concerns, that DHHR is properly compensated for past medical expenses."