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.