Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
Estate Administration Unit is designated and authorized to administer the
estate recovery program for the Oregon Health Authority and the Department of
Human Services, and to present and file claims for payment. The Manager and
Assistant Manager of the Estate Administration Unit, Estate Administrators,
Assistant Estate Administrators, and Accounts Receivable Specialist are
authorized to present, file, and resolve claims for the Estate Administration
Unit. The Manager or Assistant Manager may designate other individuals to
present, file, or resolve claims. This rule sets out some of these
claims.
(2) For the Oregon
Supplemental Income Program (OSIP) (see OAR
461-101-0010):
(a) The amount of any payments or benefits,
including an overpayment (see OAR
461-195-0501), are a claim
against the probate estate (see OAR
461-135-0832) of any deceased
recipient.
(b) The claim for
correctly paid payments or benefits under OSIP are deferred until the death of
the spouse (see OAR
461-001-0000) or
registered domestic partner (see OAR
461-135-0832), if any, of the
deceased recipient.
(c) If the
deceased recipient has no probate estate, the enforcement of
the claim has been deferred, or there are insufficient resources in the
probate estate to pay the claim in full, the probate
estate of the spouse or registered domestic
partner of the deceased recipient, if any, is charged for any payments
or benefits paid under OSIP to the deceased recipient, the
spouse, or registered domestic
partner.
(d) A claim for
correctly paid payments or benefits under OSIP is deferred until the time that
there is no child under age 21 (see OAR
461-135-0832), child
with a disability (see OAR
461-135-0832), or child
with a visual impairment (see OAR
461-135-0832).
(e) Transfers of real or personal property
without adequate consideration, by recipients of payments or benefits under
OSIP, are voidable and may be set aside under ORS
411.620.
(f) Except when there is a surviving
spouse or registered domestic partner, or a
surviving child under age 21, a child with a
disability, or a child with a visual impairment, the
amount of any payments or benefits provided is a claim against the
estate (see OAR
461-135-0832) in any
conservatorship proceedings and may be paid pursuant to ORS
125.495.
(3) For General Assistance
(see OAR 461-135-0832):
(a) The amounts of any payments or benefits,
including overpayments, are a claim against the probate estate
of any deceased recipient. The amount includes the state's monthly
contribution, paid prior to January 1, 2014, to the federal government for the
recipient's Medicare Part D prescription drug coverage. Effective July 1, 2016,
any correctly paid benefits under Oregon Laws 2016, chapter 93, section 1 are
excluded, except than an overpayment of benefits under Oregon
Laws 2016, chapter 93, section 1 is included in a claim against the
probate estate.
(b) The claim for correctly paid payments or
benefits under the General Assistance program is deferred
until the death of the spouse or registered domestic
partner, if any, of the deceased recipient.
(c) If the deceased recipient has no
probate estate, the enforcement of the claim has been
deferred, or there are insufficient resources in the probate
estate to pay the claim in full, then the probate
estate of the spouse or registered
domestic partner of the deceased recipient, if any, is charged
for any payments or benefits to the deceased recipient, the
spouse, or registered domestic
partner.
(d) A claim for
correctly paid payments or benefits under General Assistance
is deferred until the time that there is no child under age
21, child with a disability, or child with a
visual impairment.
(e)
Except when there is a surviving spouse or registered
domestic partner, or a surviving child under age 21,
a child with a disability, or child with a visual
impairment, the amount of any assistance paid is a claim against the
estate in any conservatorship proceedings and may be paid
pursuant to ORS 125.495.
(4) For Medical Assistance
(MA, as defined in OAR
461-135-0832):
(a) In determining the extent of the
estate resources subject to the claim of the Department for
correctly paid benefits, except as provided in subsection (b) of this section,
the Department must disregard resources in an amount equal to the
value (see OAR
461-135-0832) of resources
excluded in the most recent eligibility determination under OAR
461-160-0855, based on payments
received under a qualified partnership policy (see OAR
461-001-0000). The disregard of
resources specific to the estate recovery claim applies to MA benefits received
after the effective date of the MA eligibility determination in which a
qualified partnership policy was considered and approved. The
amount of any MA incurred in a prior MA eligibility period where
qualified partnership policy benefits were not considered is
not subject to the estate resource disregard.
(b) There is no disregard of resources under
subsection (a) of this section if the recipient, or the spouse
of the recipient, at any time transferred the value of the
qualified partnership policy excluded resource amount to
another individual for less than fair market value prior to the death of the
recipient or the recipient's spouse, or exhausted the
disregarded resource amount by purchasing things of value to
the recipient or the recipient's spouse while either was
living.
(c) The amount of any
incorrectly paid payments or benefits, excluding an administrative error
overpayment, are a claim, against the probate
estate of any deceased recipient.
(d) The claim for correctly paid payments or
benefits under MA is deferred until the death of the surviving
spouse, if any, of the deceased recipient. After the death of
a surviving
spouse, the deferred claim of the deceased
recipient is a claim against the following
assets (see OAR
461-135-0832) or their proceeds
in the
estate of the
spouse. The Department
has a claim against the
estate of the
spouse
for
medical assistance (see OAR
461-135-0832) paid to the
recipient, but only to the extent that the
spouse received
property or other
assets from the recipient through any of the
following:
(A) Probate.
(B) Operation of law.
(e) A claim for correctly paid payments or
benefits under MA is deferred until the time that there is no child
under age 21, child with a disability, or
child with a visual impairment.
(f) An MA claim in an
estate
includes:
(A) The amount of any payments or
benefits paid prior to October 1, 1993 to or on behalf of a recipient 65 years
of age or older are a claim against the probate estate of any
deceased recipient.
(B) The amount
of any payments or benefits, paid on or after October 1, 1993 and prior to July
18, 1995, to or on behalf of a recipient 55 years of age or older are a claim
against the probate estate of any deceased
recipient.
(C) The amount of any
payments or benefits, paid on or after July 18, 1995 and prior to October 1,
2013, to or on behalf of a recipient 55 years of age or older are a claim
against the estate of any deceased recipient. All correctly
made payments on or after January 1, 2010 for Medicare cost
sharing (see OAR
461-135-0832) are excluded from
a claim.
(D) The amount of any
payments or benefits, paid October 1, 2013 or later, to or on behalf of a
recipient 55 years of age or older, during the time the Department was paying
any of the cost of care of the individual in a nursing facility, home
and community-based care (see OAR
461-001-0030), or in home
services through the State Plan Personal Care Services (see
OAR 411-034-0010), are a claim
against the estate of any deceased recipient. All correctly
made payments on or after January 1, 2010 for Medicare cost
sharing are excluded from a claim.
(5) The amount paid, for a recipient age 55
or older, after December 31, 2013, to the federal government for the
recipient's Medicare Part D prescription drug coverage is a claim against the
estate of the deceased recipient.
(6) For trusts under OAR
461-145-0540(9),
upon termination of the trust or upon the death of the original beneficiary the
trust pays to the State or States from such remaining amounts in the trust an
amount equal to the total amount of medical assistance paid on behalf of the
original beneficiary. The State or States must be listed as the first payee or
payees and first remainder beneficiary or beneficiaries, and have priority over
payment of other debts and administrative expenses, and other beneficiaries,
except as allowed in subsection (a) of this section. Subsections (4)(d) and
(4)(e) of this rule do not apply to this section.
(a) Allowable administrative expenses payable
before any State include:
(A) Taxes due from
the trust, excluding taxes due from the beneficiary, to the State or States or
federal government because of the death of the beneficiary; and
(B) Reasonable fees for administration of the
trust estate such as an accounting of the trust to a court, completion and
filing of documents, or other required actions associated with termination and
wrapping up of the trust. Trustee fees or conservator fees, not both, are
limited to the month of the original beneficiary's death and the prior month.
(i) For a person that is a trustee, but not a
conservator, trustee fees after the month of death, if claimed, must be
reasonable and approved by the by the Department prior to payment.
(ii) For a person that is a conservator and
trustee, conservator fees after the month of death, if claimed, must be
approved by the court, after the Department is given notice and opportunity to
object.
(b)
Upon the death of the original beneficiary, the following expenses and payments
are examples of some of the types not permitted prior to reimbursement of the
State or States for medical assistance:
(A)
Taxes due from the estate of the beneficiary other than those arising from
inclusion of the trust in the estate;
(B) Payment of debts owed to third
parties;
(C) Trustee or conservator
fees, except as allowed by subsection (a) of this section;
(D) Funeral expenses; and
(E) Payments to residual
beneficiaries.
Statutory/Other Authority: ORS
411.060,
411.070,
411.404,
413.042,
413.085,
416.340, ORS
409.050,
416.350 &
414.685
Statutes/Other Implemented: ORS
93.969,
125.495,
411.404,
411.620,
411.630,
411.708,
411.795,
413.085,
416.310 &
416.350
