SUBCHAPTER 21D - ESTATE RECOVERY
SECTION .0100 - RECIPIENTS SUBJECT TO ESTATE RECOVERY
10A NCAC 21D .0101 NOTICE OF ESTATE RECOVERY
(a) An individual who applies for Medicaid coverage for
cost of care shall be given a written notice that a claim may be filed against
their estate, if one exists, to recover Medicaid payments made on his behalf.
(b) Notice shall be on a form prescribed by the Division of
Medical Assistance and shall explain:
(1) The types of Medicaid payments subject to
estate recovery;
(2) That recovery will not be claimed if the
individual is survived by a legal spouse, child(ren) under age 21 or blind or
disabled child(ren) of any age who became blind or disabled before age 21 and
still live on the property of the individual;
(3) That estate recovery is limited to
recipients age 55 and over who receive certain Medicaid services or to
recipients who are permanently institutionalized; and
(4) That recovery may be waived in the case of
undue hardship.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0102 PERMANENTLY
INSTITUTIONALIZED
(a) Recovery shall apply to the estates of individuals
under age 55 who seek Medicaid coverage for costs of care in a medical
institution and who cannot reasonably be expected to be discharged to return home.
(b) For purposes of estate recovery, medical institution
means licensed nursing facilities, intermediate care for the mentally retarded
facilities, nursing facility level of care in hospitals, or psychiatric
inpatient care in a general hospital, psychiatric hospital, or mental
institution.
(c) A determination that an individual cannot reasonably be
expected to be discharged to return home is made when the individual seeks
placement in or has been admitted to a medical institution using the following
evidence:
(1) Admission forms for level of care,
physician written statement of discharge plans, or plans of care which indicate
care needs are not of temporary duration, or
(2) Individual continues to be a resident of a
medical institution at the end of a temporary stay predicted by his physician
at the time of admission to be no longer than six months in duration.
(d) Notice of the determination that the individual is
residing in a medical institution cannot reasonably be expected to be
discharged to return home shall be given to the individual, or to his
parent/guardian/responsible person if the individual is incompetent, within
three work days after the determination. The notice shall explain the right to
request a reconsideration review, and the time limits and procedures for doing
so.
(e) The individual or his parent/guardian/responsible
person may request a reconsideration review of the determination under Section
.0200 of this Subchapter.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0103 AGE 55 AND OVER
(a) Recovery shall apply to the estates of individuals who
on or after reaching age 55 receive Medicaid coverage for nursing facility
level of care or under a home and community based alternative program for
individuals who would otherwise qualify for nursing facility level of care.
(b) Written notice that the state may file a claim against
their estate to recover the payments made by the Medicaid Program on their
behalf shall be given to individuals at the time of approval of eligibility for
nursing facility level of care or approval for home and community based
alternatives services.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
SECTION .0200 - RECONSIDERATION REVIEW
10A NCAC 21D .0201 RECONSIDERATION REVIEW
(a) The recipient or his parent/guardian/responsible person
acting on behalf of the recipient may request reconsideration of the
determination that the individual cannot reasonably be expected to be
discharged to return home based on relevant evidence stated in Rule .0101 of
this Subchapter.
(b) A reconsideration review shall be requested in writing
to the Division of Medical Assistance estate recovery administrator within 30
calendar days of the determination and written notice provided by the county
department of social services.
(c) Within 30 calendar days of a written request for
reconsideration of the determination of permanent institutionalization, the
estate recovery administrator shall establish a reconsideration date and
conduct a review of:
(1) All evidence considered by the county
department of social services in making a determination of permanent
institutionalization, and
(2) Information provided in writing or by
telephone conference with the recipient or an individual acting on behalf of
the recipient.
(d) The review shall be conducted in the Division of
Medical Assistance offices and may include a telephone conference with the
recipient or an individual acting on behalf of the recipient if oral testimony
is requested.
(e) A decision shall be made and provided in writing to the
recipient or an individual acting on behalf of the recipient within 15 calendar
days of the date of the reconsideration review.
(f) If the recipient disagrees with the decision of the
reconsideration review, he may appeal to the Office of Administrative Hearings
(OAH) within 60 calendar days of receipt of the reconsideration review
decision. If no appeal to OAH is filed, the reconsideration review decision is
final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
SECTION .0300 - MEDICAID PAYMENTS SUBJECT TO RECOVERY
10A NCAC 21D .0301 PERMANENTLY INSTITUTIONALIZED
(a) For permanently institutionalized individuals recovery
shall be claimed for all Medicaid payments, including cost sharing charges for
Medicare services and Medicare premiums, made on behalf of individuals for the
period of time the individual received care in a medical institution, including
the period of time prior to the date the recipient is determined permanently
institutionalized whether or not such periods were consecutive. The amount of
recovery shall be limited to the amount of Medicaid payments for services and
benefits described herein.
(b) No recovery shall be claimed for any period of time the
recipient was discharged from a medical institution and lived in the community
for a period of 30 or more consecutive days.
(c) No recovery shall be claimed if the recipient is
survived by one or more of the relatives listed in Section .0100 of this
Subchapter.
(d) No recovery shall be claimed if the Division of Medical
Assistance determines under provisions of Section .0500 of this Subchapter that
it is not cost effective or if recovery would create undue hardship to a
survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0302 AGE 55 AND OVER
(a) For individuals age 55 and over recovery shall be
claimed for Medicaid payments for the following services and benefits:
(1) Nursing facility level of care;
(2) Home and community based alternatives
services;
(3) Related hospital care received during
approved care under either Subparagraph (1) or (2) of this Paragraph;
(4) Prescription drugs received during approved
care under either Subparagraph (1) or (2) of this Paragraph; and
(5) Medicare premiums paid during the time of
approved care under either Subparagraph (1) or (2) of this Paragraph.
(b) The amount of recovery shall be limited to the amount
of Medicaid payments and benefits described in Paragraph (a)(1)-(5) of this
Rule.
(c) No recovery shall be claimed if the recipient is
survived by one or more relatives listed in Section .0100 of this Subchapter.
(d) No recovery shall be claimed if the Division of Medical
Assistance determines under provisions of Section .0500 of this Subchapter that
it is not cost effective or if recovery would create undue hardship to a
survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
SECTION .0400 - FILING AND COLLECTION OF CLAIMS AGAINST ESTATE
10A NCAC 21D .0401 FILING CLAIM AGAINST ESTATE
(a) Within 60 days after the date of a recipient's death,
the Division of Medical Assistance or its fiscal agent shall produce a claim
document summarizing all Medicaid payments subject to recovery as stated in
Rules .0301 and .0302 of this Subchapter.
(b) The claim shall be mailed to the county department of
social services from which the individual received Medicaid.
(c) Following a determination that the recipient is not
survived by any of the relatives listed in Section .0100 of this Subchapter,
the county department of social services shall file the claim by certified mail
with the individual who has been named to administer the estate and shall send
a copy to the clerk of court for his records. At the time the claim is filed
the administrator shall be notified that recovery will be waived if the assets
in the estate are below five thousand dollars ($5,000), and of the procedures
for requesting a determination of undue hardship.
(d) The claim shall be filed regardless of whether an
appeal or determination of permanent institutionalization status has been
decided.
(e) If an administrator of the decedent's estate has not
been appointed at the time the claim is received in the county, within 30
calendar days the county shall request the name of the administrator from the
clerk of court and shall file the claim directly with the clerk of court if no
appointment has been made.
(f) At any time that the county department of social
services determines that the decedent is survived by any of the relatives
listed in Section .0100 of this Chapter or that the decedent does not have an
estate, it shall notify the Division of Medical Assistance to cease recovery
efforts.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0402 COLLECTION OF CLAIMS
(a) Estate for purposes of recovery of Medicaid payments is
defined under G.S. 28A-15-1.
(b) Unless the Division of Medical Assistance waives or
reduces its claim, recovery under rules in Section .0500 of this Subchapter,
recovery shall be claimed in full for the amount of the Medicaid claim to the
extent that assets in the estate are sufficient to meet the state's claim as a
fifth class creditor.
(c) All recoveries for Medicaid claims shall be remitted to
the Division of Medical Assistance by the administrator of the decedent's
estate, any individual or entity designated by the clerk of court or by the
clerk of court.
(d) Amounts recovered shall be shared by the federal, state
and county governments in proportion to the financial share of program costs
borne by each at the time recovery is received.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
SECTION .0500 - WAIVER OF RECOVERY
10A NCAC 21D .0501 RECOVERY NOT COST EFFECTIVE
Recovery shall be deemed to not be cost effective and shall
be waived when:
(1) The amount of Medicaid payments for services and
benefits subject to recovery is less than three thousand dollars ($3,000), or
(2) The assets in the estate are below five thousand
dollars ($5,000).
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0502 UNDUE HARDSHIP
(a) Recovery shall be waived if enforcement of the claim
will cause undue or substantial hardship to the surviving heirs of the
decedent.
(b) Undue or substantial hardship shall include the
following:
(1) Real or personal property included in the
estate is the sole source of income for a survivor and the net income derived
is below 75 percent of the federal poverty level for the dependents of the
survivor(s) claiming hardship, or
(2) Recovery would result in forced sale of the
residence of a survivor who lived in the residence for at least 12 months
immediately prior to and on the date of the decedent's death and who would be
unable to obtain an alternate residence because the net income available to the
survivor and his spouse is below 75 percent of the federal poverty level and
assets in which the survivor or his spouse have an interest are valued below
twelve thousand dollars ($12,000).
(c) Undue hardship shall not include loss of a pre-existing
standard of living nor the establishment of a source of maintenance that did
not exist prior to the decedent's death.
(d) A claim of undue hardship to a survivor shall be made
in writing to the Division of Medical Assistance estate recovery administrator
within 30 days after the surviving heir claiming undue hardship has been
notified of the Medicaid claim. The claim of hardship shall describe the
financial circumstances of the heir and the basis for his dependence on assets
in the decedent's estate.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
10A NCAC 21D .0503 DETERMINATION OF UNDUE HARDSHIP
(a) The estate recovery administrator shall evaluate each
claim of hardship within 60 calendar days of the request to make a
determination to waive recovery of the claim in part or in full. In making this
determination, the administrator may request documentation to support the
survivor's claim of hardship including prior year's income tax returns, bank
statements, wage and earnings files, real and personal property records,
utility records, tax records, medical bills, or other documents offered by the
survivor to support his claim.
(b) If documentation necessary to evaluate the claim of
hardship is not provided or the survivor requests additional time to obtain the
documentation, the administrator may extend the review for an additional 30
days.
(c) The claim of hardship shall be denied if the necessary
documentation is not provided within the time frames stated in Paragraphs (a)
and (b) of this Rule.
(d) The administrator shall notify in writing the survivor
claiming hardship, the administrator and the clerk of court of his decision
within 10 calendar days after completing the review of the request and
documentation supporting the claim of hardship. The notice shall explain the
right to appeal to the Office of Administrative Hearings (OAH) and the time
limit and procedure for doing so.
(e) If the survivor disagrees with the decision, he may
appeal to the Office of Administrative Hearings (OAH) within 60 calendar days
of receipt of the decision. If no appeal to OAH is filed, the decision shall
be final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General Assembly, whichever is
later;
Temporary Rule Expired on July 1, 1996;
Eff. July 1, 1996.
