Current through Register Vol. 35, No. 18, September 24, 2024
HSD is mandated to seek recovery from the estates of certain
individuals up to the amount of medical assistance payments made by the HSD on
behalf of the individual. See Social Security Act Section 1917 (
42 USC
1396 p(b) and NMSA 1978, Section
27-2A-1 et
seq. "Medicaid Estate Recovery Act").
A.
Definitions used in MAD estate
recovery:
(1) Authorized
representative: The individual designated to represent and act on the eligible
recipient's behalf. The eligible recipient or authorized representative must
provide formal documentation authorizing the named individual or individuals to
access the identified case information for a specified purpose and time frame.
An authorized representative may be an attorney representing a person or
household, a person acting under the authority of a valid power of attorney, a
guardian, or any other individual or individuals designated in writing by the
member.
(2) Estate: Real and
personal property and other assets of an individual subject to probate or
administration pursuant to the New Mexico Uniform Probate Code.
(3) Medical assistance: Amounts paid by HSD
for long term care services including related hospital and prescription drug
services.
B.
Basis
for defining the group: A MAP eligible recipient who was 55 years of age
or older when medical assistance payments were made on his or her behalf for
nursing facilities services, home and community based services, and related
hospital and prescription drug services are subject to estate
recovery.
C.
The following
exemptions apply to estate recovery:
(1) Qualified medicare beneficiaries,
specified low-income beneficiaries, qualifying individuals, and qualified
disabled and working individuals, are exempt from estate recovery for the
receipt of hospital and prescription drug services unless they are concurrently
in a MAP nursing facility category of eligibility or on a home and community
based services waiver; this provision applies to medicare cost-sharing benefits
(i.e., Part A and Part B premiums, deductibles, coinsurance, and co-payments)
paid under the medicare savings programs.
(2) Certain income, resources, and property
are exempted from MAD estate recovery for native Americans:
(a) interest in and income derived from
tribal land and other resources held in trust status and judgment funds from
the Indian claims commission and the United States claims court;
(b) ownership interest in trust or non-trust
property, including real property and improvements;
(i) located on a reservation or near a
reservation as designated and approved by the bureau of Indian affairs of the
U.S, department of interior; or
(ii) for any federally-recognized tribe
located within the most recent boundaries of a prior federal reservation;
and
(iii) protection of non-trust
property described in Subparagraphs (a) and (b) is limited to circumstances
when it passes from a native American to one or more relatives, including
native Americans not enrolled as members of a tribe and non-native Americans
such as a spouse and step-children, that their culture would nevertheless
protect as family members; to a tribe or tribal organization; or to one or more
native Americans;
(c)
income left as a remainder in an estate derived from property protected in
Paragraph (2) above, that was either collected by a native American, or by a
tribe or tribal organization and distributed to native Americans that the
individual can clearly trace the income as coming from the protected
property;
(d) ownership interests
left as a remainder in an estate in rents, leases, royalties, or usage rights
related to natural resources resulting from the exercise of federally-protected
rights, and income either collected by a native American, or by a tribe or
tribal organization and distributed to native Americans derived from these
sources as long as the individual can clearly trace the ownership interest as
coming from protected sources; and
(e) ownership interest in or usage of rights
to items, not covered by Subparagraphs (a) through (d) above, that have unique
religious, spiritual, traditional, or cultural significance or rights that
support subsistence or a traditional lifestyle according to applicable tribal
law or custom.
D.
Recovery process: Recovery
from an eligible recipient's estate will be made only after the death of the
eligible recipient's surviving spouse, if any, and only at a time that the
eligible recipient does not have surviving child who is less than 21 years of
age, blind, or who meet the SSA definition of disability.
(1) Estate recovery is limited to payments
for applicable services received on or after October 1, 1993; except that
recovery also is permitted for pre-October 1993 payments for nursing facility
services received by a MAP recipient who was 65 years of age or older when such
nursing facility services were received.
(2) A recovery notice will be mailed to the
authorized representative or next of kin upon the eligible recipient's death
informing him or her about the amount of claim against the estate and provide
information on hardship waivers and hearing rights.
(3) It is the family or authorized
representative's responsibility to report the eligible recipient's date of
death to the ISD office within 10 calendar days after the date of
death.
E.
Eligible
recipient rights and responsibilities:
(1) At the time of application or
re-certification, the authorized representative must be identified or confirmed
by the applicant or eligible recipient or his or her designee.
(2) Information explaining estate recovery
will be furnished to the applicant or eligible recipient, his or her personal
representative, or designee during the application or re-certification process.
Upon the death of the MAP eligible recipient, a notice of intent to collect
(recovery) letter will be mailed to the eligible recipient's personal
representative with the total amount of claims paid by MAD on behalf of the
eligible recipient. The authorized representative must acknowledge receipt of
this letter in the manner prescribed in the letter within 30 calendar days of
the date on the letter.
(3) During
the application or re-certification process for] MAP eligibility, the local
county ISD office will identify the assets of an applicant or the eligible
recipient. This includes all real and personal property which belongs in whole
or in part to the applicant or eligible recipient and the current fair market
value of each asset. Any known encumbrances on the asset should be identified
at this time by the applicant or the eligible recipient or his or her
authorized representative.
(4)
MAD, or its designee, will send notice of recovery to the probate court, when
applicable, and to the eligible recipient's authorized representative or
successor in interest. The notice will contain the following information:
(a) statement describing the action MAD, or
its designee, intends to take;
(b)
reasons for the intended action;
(c) statutory authority for the
action;
(d) amount to be
recovered;
(e) opportunity to apply
for the undue hardship waiver;
(f)
procedures for applying for a hardship waiver and the relevant timeframes
involved;
(g) explanation of the
eligible recipient's personal representative's right to request a HSD
administrative hearing; and
(h) the
method by which an affected person may obtain a HSD administrative hearing and
the applicable timeframes involved.
(5) Once notified by MAD, or its designee, of
the decision to seek recovery, it is the responsibility of the eligible
recipient's authorized representative or successor in interest to notify other
individuals who would be affected by the proposed recovery.
(6) The authorized representative will:
(a) remit the amount of medical assistance
payments to HSD or its designee;
(b) apply for an undue hardship waiver; (see
Paragraph (2) of Subsection F below); or
(c) request an administrative
hearing.
F.
Waivers:
(1) For a general
waiver, HSD may compromise, settle, or waive recovery pursuant to the Medicaid
Estate Recovery Act if it deems that such action is in the best interest of the
state or federal government.
(2)
Hardship provision: HSD, or its designee, may waive recovery because recovery
would work an undue hardship on the heirs. The following are deemed to be
causes for hardship:
(a) the deceased
recipient's heir would become eligible for a needs-based assistance program
such as medicaid or temporary assistance to needy families (TANF) or be put at
risk of serious deprivation without the receipt of the proceeds of the
estate;
(b) the deceased eligible
recipient's heir would be able to discontinue reliance on a needs-based program
(such as medicaid or TANF) if he or she received the inheritance from the
estate;
(c) the deceased
recipient's assets which are subject to recovery are the sole income source for
the heir;
(d) the homestead is
worth 50 percent or less than the average price of a home in the county where
the home is located based on census data compared to the property tax value of
the home; or
(e) there are other
compelling circumstances as determined by HSD or its designee.