(a) Medicaid Estate Recovery claims will be sought only after the death of the Medicaid recipient, and if there is no: (1) Surviving spouse; (2) Surviving child or children under 21 years of age; (3) Surviving child of any age who is blind or disabled as defined by 42 U.S.C. §1382c; or (4) Unmarried adult child residing continuously in the decedent's homestead for at least one year prior to the time of the Medicaid recipient's death. (b) Certain assets and resources of American Indians (AI) and Alaska Natives (AN) are exempt from estate recovery claims. The following AI/AN income, resources, and property are exempt from Medicaid Estate Recovery: (1) Certain AI/AN income and resources (such as interests in and income derived from Tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations; (2) Ownership interest in trust or non-trust property, including real property and improvements: (A) Located on a reservation (any federally recognized Indian Tribe's reservation, pueblo, or colony, including former reservations in Oklahoma, Alaska Native regions established by Alaska Native Claims Settlement Act and Indian allotments) or near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or (B) For any federally recognized Tribe not described in subparagraph (A) of this paragraph located within the most recent boundaries of a prior Federal reservation. (C) Protection of non-trust property described in subparagraphs (A) and (B) of this paragraph is limited to circumstances when it passes from an Indian (as defined in section 4 of the Indian Health Care Improvement Act) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as a member of a Tribe and non-Indians such as spouses and step-children, that their culture would nevertheless protect as family members; to a Tribe or Tribal organization; and/or to one or more Indians; (3) Income left as a remainder in an estate derived from property protected in paragraph (2) of this subsection, that was either collected by an Indian, or by a Tribe or Tribal organization and distributed to Indian(s), as long as the individual can clearly trace it as coming from protected property; (4) Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of Federally-protected rights, and income either collected by an Indian, or by a Tribe or a Tribal organization and distributed to Indian(s) derived from these sources as long as the individual can clearly trace it as coming from protected sources; and (5) Ownership interests or usage rights to items not covered by paragraphs (1) - (4) of this subsection that have unique religious, spiritual, traditional, and/or cultural significance, or rights that support subsistence or a traditional life style according to applicable Tribal law or custom. (c) American Indians and Alaska Natives Income, Resources, and Property Not Exempt from Medicaid Estate Recovery include: (1) Ownership interests in assets and property, both real and personal, that are not described in subsection (b) of this section; or (2) Any income and assets left as a remainder in an estate that do not derive from protected property or sources in subsection (b) of this section. (d) Government reparation payments to individuals in special populations are exempt from Medicaid estate recovery claims.
Source Note: The provisions of this §373.207 adopted to be effective March 1, 2005, 30 TexReg 830