Current through Register Vol. 63, No. 9, September 1, 2024
(1) When the Department has a claim against
the Estate of a deceased Native American Indian or Alaskan Native Village
tribal member, certain exemptions from recovery apply. The following income,
resources and property are exempt from Medicaid estate recovery:
(a) Income and resources that are
specifically exempt by law from Medicaid estate recovery, such as:
(A) Interests in and income derived from
tribal land and other resources currently held in trust status; and
(B) Judgment funds from the Indian Claims
Commission and the United States Court of Federal Claims.
(b) Ownership interest in trust or non-trust
property, including real property and improvements:
(A) Located on a reservation (any federally
recognized Indian Tribe's reservation, pueblo, or colony, including former
reservations in Oklahoma, Alaska Native regions established by the Alaska
Native Claims Settlement Act and Indian allotments);
(B) Located near a reservation as designated
and approved by the Bureau of Indian Affairs of the U.S. Department of the
Interior; or
(C) For any federally
recognized tribe not described in paragraphs (A) and (B) of this subsection,
located within the most recent boundaries of a prior federal
reservation.
(c) Income
left as a remainder in an Estate, derived from property described in sections
(1)(a) and (b) of this rule, that was collected by an Indian, by a tribe, or by
a tribal organization and distributed to one or more Indians, as long as the
personal representative of the Estate can clearly trace and document that the
income came from the protected property.
(d) As long as the personal representative of
the Estate can clearly trace and document that it came from the protected
sources:
(A) An ownership interest left as a
remainder in an Estate in rents, leases, royalties, or usage rights related to
natural resources (including extraction of natural resources or harvesting of
timber, other plants and plant products, animals, fish, and shellfish)
resulting from the exercise of federally protected rights; and
(B) Income derived from these sources that is
collected by an Indian, a tribe, or a tribal organization and distributed to
one or more Indians.
(e)
Ownership interest in and usage rights to items not covered by subsections (a)
through (d) of this section that have unique religious, spiritual, traditional
or cultural significance.
(f)
Rights that support subsistence or a traditional life style according to
applicable tribal law or custom.
(2) Protection of non-trust property
described in sections (1)(a) and (b) of this rule is limited to circumstances
when it passes from an Indian (as defined in section 4 of the Indian Health
Care Improvement Act, Pub. L. No. 94-437) to:
(a) One or more relatives (by blood, adoption
or marriage), including Indians not enrolled as a member of a tribe and
non-Indians, such as spouses and step-children, who would be protected as
family members by the tribe;
(b) A
tribe or tribal organization; or
(c) One or more Indians.
(3) The following are subject to Medicaid
estate recovery:
(a) Native American Indian
and Alaskan Native tribal member ownership interest in assets and property,
both real and personal, that are not described in sections (1) and (2) of this
rule.
(b) Any income or assets left
as a remainder in the Estate that do not derive from protected property or
sources described in sections (1) and (2) of this rule.
Publication.: Publications referenced are available from the
agency.
Stat. Auth.: ORS
409.050,
410.070,
414.105
