Section .0100 - Recipients Subject To Estate Recovery

Link to law: http://reports.oah.state.nc.us/ncac/title 10a - health and human services/chapter 21 - medical assistance administration/subchapter d/subchapter d rules.html
Published: 2015

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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.