Ohio § 3701.026

§ 3701.026.

(A) The acceptance of assistance under the program for children and youth with special

health care needs gives a right of subrogation to the department of health against

the liability of a third party for the costs of goods or services paid by the department

under division (E) of section 3701.023 of the Revised Code .  The department's subrogation claim shall not exceed the total cost of the goods

and services paid under division (E) of section 3701.023 of the Revised Code . (B) To enforce its subrogation rights, the department may do any of the following: (1) Intervene or join in any action or proceeding brought by a child or youth with special

health care needs or the child or youth's parent or guardian against any third party

who may be liable for the cost of goods and services paid under division (E) of section 3701.023 of the Revised Code ; (2) Institute and pursue legal proceedings against any third party who may be liable

for the cost of goods and services paid under division (E) of section 3701.023 of the Revised Code ; (3) Initiate legal proceedings in conjunction with a child or youth with special health

care needs or the child or youth's parent or guardian against any third party who

may be liable for the cost of goods and services paid under division (E) of section 3701.023 of the Revised Code . (C) When an action or claim is brought against a third party by a child or youth with

special health care needs participating in the program or the child or youth's parent

or guardian, the entire amount of any settlement or compromise of the action or claim,

or any court award or judgment, is subject to the subrogation right of the department.  If all or part of settlement, compromise, award, or judgment is established in the

form of a trust to benefit the child or youth or the child or youth's family or guardians,

the department may waive its right of subrogation against all or part of the trust.  Any settlement, compromise, award, or judgment that excludes the costs of goods

and services paid under division (E) of section 3701.023 of the Revised Code shall not preclude the department from enforcing its subrogation right under this

section. (D) No settlement, compromise, judgment, or award or any recovery in any action or claim

by a child or youth with special health care needs or the child or youth's parent

or guardian when the department has a right of subrogation shall be made final without

first giving the department notice and the opportunity to perfect its right of subrogation.  If the department is not given notice, the child or youth, parent, or guardian is

liable to reimburse the department for the cost of goods and services paid under division (E) of section 3701.023 of the Revised Code out of any recovery received.  The third party becomes liable to the department as soon as the third party is notified

in writing of the valid claims for subrogation under this section. (E) Subrogation does not apply to that portion of any judgment, award, settlement, or

compromise of a claim, to the extent that attorney's fees, costs, or other expenses

are incurred by a child or youth with special health care needs or the child or youth's

parent or guardian in securing the judgment, award, settlement, or compromise, or

to the extent that the cost of goods and services specified in divisions (B) and (D) of section 3701.023 of the Revised Code are paid by the child or youth, parent, or guardian.  Attorney's fees and costs or other expenses in securing any recovery shall not be

assessed against any subrogated claim of the department.