Saint Louis University Journal of Health Law & Policy

Document Type

Student Comment


In response to an impending obstetrician shortage and medical malpractice crisis, the states of Florida and Virginia adopted no-fault birth-related neurological injury compensation programs in the 1980s. Both of these programs provide lifetime coverage for eligible children with serious birth-related neurological injuries; however, both programs treated themselves as the payer of last resort and required families to submit claims to Medicaid first based on an inaccurate interpretation of Medicaid third party-liability (“TPL”) laws and the program-enabling statutes. Both programs’ policies treating themselves as the payer of last resort not only violated Federal and State Medicaid laws, they caused harm to the enrolled children and their families and resulted in False Claims Act lawsuits. This Article examines the Medicaid TPL policies in Florida and Virginia’s birth-related neurological injury compensation programs and a proposed program in Maryland as well as proposes recommendations for future statutory, administrative guidance, and policy changes to avoid Medicaid TPL issues in the future. It argues that clear and consistent legislation, policies, and administrative guidance are needed to address Medicaid TPL issues in existing programs and ensure similar issues do not recur in the future.