Current through Register Vol. 56, No. 18, September 16, 2024
(a) Correctly paid
benefits shall only be recoverable from the estate of an individual who was 65
years of age or older when the individual received medical assistance if:
1. The individual leaves no surviving
spouse;
2. For estates of
individuals who died between February 1, 1984 and October 20, 1992, the
individual left no surviving child;
3. For estates of individuals who died on or
after October 21, 1992, the individual leaves no surviving child who is under
the age of 21 or any surviving blind or permanently and totally disabled
children;
4. The amount to be
recovered is in excess of $ 500.00; and
5. The gross estate is in excess of $
3,000.
(b) Paragraphs
(a)4 and 5 above shall apply to recoveries from the estates of individuals who
died on or after July 20, 1981, but prior to December 22, 1995.
(c) For estates of individuals who died on or
after April 1, 1995, in addition to the recoveries authorized under (a) and (b)
above, any Medicaid payments correctly made on or after October 1, 1993, on
behalf of individuals who received services on or after age 55 but prior to age
65, are recoverable from the estates of those individuals, subject to the
conditions set forth in (a)1, 3, 4 and 5 and (b) above.
(d) Effective for estates created on or after
October 4, 1999, the Division shall file any claim or lien against an estate
under this section within three years after receiving actual written notice
from the personal representative of the estate or any other interested party of
the death of the Medicaid beneficiary.
(e) For estates of individuals who died on or
after December 22, 1995, Medicaid claims under this section shall be deemed
preferred claims, with a priority equivalent to that under subsection c. of
3B:22-2, that is, debts and taxes
with preference under Federal or State law.
(f) The personal representative of the estate
of a deceased Medicaid beneficiary or any other interested party, upon request
to the Division, may obtain a "payoff statement" on the amount due under the
claim, if that information is available to the Division at the time the request
is received.
(g) Effective for
estates pending on or created after October 4, 1999, if a family member of a
deceased Medicaid beneficiary has, prior to the beneficiary's death,
continuously resided in a home owned by the beneficiary at the time of the
beneficiary's death, and that home was the beneficiary's primary residence, and
was and remains the family member's primary residence, the Division may record
a lien against the property, but will not enforce the lien until the property
is voluntarily sold, or the resident family member either dies or vacates the
property.
(h) For estates of
individuals who died on or after October 1, 1993, which are subject to a
recovery claim under this section which was either pending on or initiated
after March 1, 1995, the estate representative may apply to the Division for a
waiver or compromise of the claim based upon grounds of undue hardship, subject
to the following policies and procedures:
1.
Undue hardship can be demonstrated only if the estate subject to recovery is or
would become the sole income-producing asset of the survivors, and pursuit of
recovery is likely to result in one or more of those survivors becoming
eligible for public assistance and/or Medicaid benefits.
2. There shall be a rebuttable presumption
that no undue hardship exists if the hardship resulted from estate planning
methods under which assets were divested in order to avoid estate
recovery.
3. Upon receipt of
written notice that the estate is subject to a recovery claim by the Division,
the estate representative shall have 20 days from the date of receipt of the
notice to file a request for a waiver or compromise of the Division's claim
based upon undue hardship, together with evidence in support of the request. If
that request is not received by the Division within the time limit specified,
the Division shall not grant a waiver or compromise based upon undue hardship.
Upon receipt of a timely request, the Division shall evaluate the request and
the evidence submitted, and shall notify the applicant in writing of its
decision within 45 days from the date that the request was received. If the
estate representative wishes to contest the Division's decision, a written
request for a hearing shall be submitted to the Division within 20 days from
the date of receipt of that decision, in accordance with the provisions of
N.J.A.C. 10:49-10. This request shall be forwarded by the Division to the
Office of Administrative Law (OAL), which shall notify the parties of the
hearing date and venue, and shall provide a description of the hearing process.
Subsequent to the hearing, the formal decision of the OAL shall include a
description of the process leading to the final agency decision and the appeal
rights available to both parties.
(i) The Division may elect not to pursue a
claim under this section against the estate of an individual who died on or
after December 22, 1995, if it determines, in its sole discretion, that to do
so would not be cost-effective.
(j)
For all estate recoveries pending on or initiated after October 4, 1999, no
lien of any kind, inchoate or otherwise, and no right of recovery can either
exist or be pursued until all of the conditions set forth in
30:4D-7.2a are met, including the
absence of any surviving spouse or of any minor, blind, or permanently and
totally disabled children.
(k) For
all estate recoveries pending on or initiated on or after October 4, 1999, even
when the statutory conditions for lien filing and recovery are met, recovery
shall not be pursued against property held by any bona fide purchaser who has
paid fair market value for the property, but shall be sought from the
estate.
(l) For
purposes of this section, the term "estate" with respect to a deceased Medicaid
beneficiary shall include:
1. All real and
personal property and other assets included within the individual's estate, as
defined in
3B:1-1; and
2. For individuals who died on or after April
1, 1995, the term "estate" shall also include any other real and personal
property and other assets in which the Medicaid beneficiary had any legal title
or interest at the time of death, to the extent of that interest, including
assets conveyed to a survivor, heir or assign of the beneficiary through joint
tenancy, tenancy in common, survivorship, life estate, living trust or other
arrangement, as well as any proceeds from the sale of any such property which
remain in the estate of the survivor, heir or assign of the beneficiary, to the
extent of the beneficiary's interest;
i.
Effective for future estates or estate recoveries pending on or after October
4, 1999, for purposes of this subsection, the term "life estate" shall mean a
life estate created upon the death of a beneficiary;
ii. Effective for future estates or estate
recoveries pending on or after October 4, 1999, for purposes of this
subsection, the term "other arrangement" shall include, but not be limited to,
any trust or annuity in which the beneficiary had an interest at the time of
death, including a trust or annuity established by a third party, subject to
the exclusions discussed in (n) below.
(m) Any lien filed on or after October 4,
1999 against an estate as described in (l)2 above shall
describe the extent of the deceased Medicaid beneficiary's interest covered by
the lien, if known to the Division at the time the lien is filed. For example,
if a deceased Medicaid beneficiary at the time of his death owned real property
as a tenant-in-common with another individual, the lien should state that it
encumbers only 50 percent of the equity in the real property. If the deceased
Medicaid beneficiary held a tenancy-by-the-entirety or joint tenancy with a
right of survivorship, then the lien shall state that it encumbers all of the
property. If the Division is not aware of the extent of the beneficiary's
interest at the time that the lien is filed, the full amount of the Division's
claim shall be listed on the lien.
(n) For purposes of this section, for future
estates or estates pending on or after October 4, 1999, the term "estate" shall
not include:
1. A life estate in which the
beneficiary held an interest during his or her lifetime, but which expired upon
the Medicaid beneficiary's death;
2. An inter vivos trust established by a
third party for the benefit of the now-deceased Medicaid beneficiary, provided
that:
i. The trust is a discretionary trust,
constructed in such a way that the Medicaid beneficiary could not compel
distributions from the trust; and
ii. The trust contains no assets in which the
Medicaid beneficiary held any interest within either five years prior to
applying for Medicaid benefits, or five years prior to the Medicaid
beneficiary's death; or
3. A testamentary trust established by a
third party (including the spouse of the now-deceased Medicaid beneficiary) for
the benefit of the now-deceased Medicaid beneficiary, provided that:
i. The trust is a discretionary trust,
constructed in such a way that the Medicaid beneficiary could not compel
distributions from the trust; and
ii. The trust contains no assets in which the
Medicaid beneficiary held any interest within either five years prior to
applying for Medicaid benefits, or five years prior to the beneficiary's death.
Assets of the community spouse which formed a part of the community spouse
resource allowance shall not be considered assets of the Medicaid beneficiary.
Any assets of the community spouse other than those that formed part of the
community spouse resource allowance shall be considered assets of the Medicaid
beneficiary if acquired from the Medicaid beneficiary within five years prior
to the date of application for Medicaid benefits or five years prior to the
date of death of the Medicaid beneficiary.
