Current through Register Vol. 41, No. 3, September 23, 2024
A.
Definitions. The following words and terms when used in this regulation shall
have the following meanings unless the context clearly indicates otherwise:
"Act" means the Social Security Act ( 42 USC § 1396)
as applicable.
"Applicable medical assistance payment" means the amount of
any medical assistance payments made on behalf of an individual under Title XIX
of the Social Security Act.
"Claim" means, for the purposes of this section, action
taken by DMAS to recover from the estate of an individual, who was age 55 or
older when that person received medical assistance, the total amount of
assistance paid for services consistent with the coverage and reimbursement
policies in the State Plan for Medical Assistance.
"Cost effective" means that both the dollar amount of the
medical assistance payments (claim) and the value of the estate at least exceed
the administrative costs of recovery.
"Dual eligibles" mean individuals who are entitled to
Medicare hospital insurance under Part A or supplementary medical insurance
under Part B, or both, and are eligible for some form of Medicaid
benefit.
"Estate" means, with respect to a deceased individual, (i)
all real and personal property and other assets held by the individual at the
time of death and (ii) any other real and personal property and other assets in
which the individual had any legal title or interest (to the extent of such
interest) at the time of his death.
"Homestead of modest value" means a home that is worth 50%
or less of the average or median price, as contained in the most recent U.S.
Census data or any other such source of home value information as published in
the agency's guidance documents, of homes in the county or city, as
appropriate, where the homestead is located as of the date of the individual's
death.
"Undue hardship" means that DMAS has determined that
enforcement of a claim to recover Medicaid benefits would result in substantial
hardship to the devisees, legatees, and heirs or dependents of the deceased
individual against whose estate the Medicaid claim exists.
B. Under the authority and consistent with
the requirements of the Social Security Act § 1917 (the Act), the
Commonwealth shall recover applicable medical assistance payments when such
payments have been correctly or incorrectly paid on behalf of certain
individuals. The Department of Medical Assistance Services (DMAS) shall provide
notice of the Commonwealth's Medicaid estate recovery program at the time of
application for medical assistance.
C. Adjustment and recovery. Adjustment or
recovery can only be made after the death of the individual's surviving spouse,
if any, and only at a time when the individual has no surviving child under age
21, or a blind or disabled child as defined in § 1614 of the Act. The
Commonwealth shall seek adjustment or recovery of all medical assistance
payments correctly paid on behalf of an individual who is age 55 or older under
the State Plan as follows:
1. The
Commonwealth shall seek adjustment or recovery from the estate of an individual
who was age 55 or older when that person received medical assistance. Except as
noted in subdivision 2 of this subsection, the Commonwealth shall recover
amounts up to the total amount spent on the individual's behalf for medical
assistance for items or services provided for the individual under the State
Plan.
2. Dual eligible protection
from recovery.
a. The Commonwealth shall
recover from the estates of the following dual eligible individuals who are 55
years of age or older, who receive full Medicaid benefits in addition to
Medicare:
(i) qualified Medicare
beneficiaries with full Medicaid benefits (QMB Plus),
(ii) specified low-income Medicare
beneficiaries with full Medicaid benefits (SLMB Plus), and
(iii) Medicare beneficiaries eligible for a
limited package of Medicaid benefits QMB, SLMB, qualified individuals (QI) or
qualified disabled and working individuals (QDWI)). The Commonwealth shall
recover from these individuals' estates medical assistance payments made on
behalf of these individuals with the exception of Medicare cost-sharing
benefits or for benefits described in § 1902(a)(10)(E). This exception
shall apply to Medicare cost-sharing benefits (i.e., Part A and B premiums,
deductibles, coinsurance, and copayments) with dates of service on or after
January 1, 2010. The date of service for deductibles, coinsurance, and
copayments shall be the date the request for payment is received by DMAS. The
date of service for premiums shall be the date the Medicaid agency paid the
premium.
b. The
protection from estate recovery against Medicare cost-sharing benefits
(premiums, deductibles, coinsurance, and copayments) set forth in subdivision 2
a of this section that is made for the applicable categories of protected dual
eligible individuals described in that subdivision shall apply to approved
mandatory and optional services set out in the State Plan for which Medicare
cost sharing applies.
3.
The Commonwealth shall recover from individuals with long-term care insurance
policies. However, the Commonwealth shall not seek adjustment or recovery from
the individual's estate for all Medicaid costs for nursing facility and other
long-term care services if assets or resources are disregarded to the extent of
payments made under a qualified long-term care partnership insurance
policy.
4. Estate recovery and
managed care. When a Medicaid beneficiary is enrolled in a managed care
organization and services are provided by the managed care organization that
are included under the State Plan, the Commonwealth shall seek adjustment or
recovery from the individual's estate for the capitation payments in the
Commonwealth's claim against the estate. When the individual enrolls in the
managed care organization, the Commonwealth shall provide a separate notice to
the individual that explains that the capitation payments made to the managed
care organization are included in whole in the claim against the estate. The
Commonwealth shall recover from the individual's estate the total capitation
rate for the period the individual was enrolled in the managed care
organization.
5. The following
American Indian/Alaska Native (AI/AN) income, resources, and property shall be
exempt from Medicaid estate recovery pursuant to § 1917(b)(3) of the Act
for hardship applicable to federally recognized tribes:
a. Certain AI/AN income and resources (such
as interests in and income derived from tribal land and other resources
currently held in trust status and judgment funds from the Indian Claims
Commission and the U.S. Claims Court) that are exempt from Medicaid estate
recovery by other laws and regulations;
b. Ownership interest in trust or nontrust
property, including real property and improvements:
(1) Located on a reservation (any federally
recognized Indian tribe's reservation or near a reservation) as designated and
approved by the Bureau of Indian Affairs of the U.S. Department of the
Interior; or
(2) For any federally
recognized tribe not described in this subdivision, located within the most
recent boundaries of a prior federal reservation.
(3) Protection of nontrust property described
in this subdivision is limited to circumstances when it passes from an Indian
(as defined in § 4 of the Indian Health Care Improvement Act, 25 USC
§§ 1601 - 1683) to one or more relatives (by blood, adoption, or
marriage), including Indians not enrolled as members of a tribe and
non-Indians, such as spouses and step-children, that their culture would
nevertheless protect as family members; to a tribe or tribal organization or to
one or more Indians, or all of these;
c. Income left as a remainder in an estate
derived from property protected in this subdivision, that was either collected
by an Indian, or by a tribe or tribal organization and distributed to an Indian
or Indians, as long as the individual can clearly trace such 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 (including, but not
necessarily limited to, 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 income either
collected by an Indian, or by a tribe or tribal organization and distributed to
an Indian or Indians derived from these sources as long as the individual can
clearly trace the interest as coming from protected sources.
e. Ownership interests in or usage rights to
items not covered by this subdivision that have unique religious, spiritual,
traditional, or cultural significance or rights, or all of these, that support
subsistence or a traditional lifestyle according to applicable tribal law or
custom.
6. The
Commonwealth shall recover the following income, resources and property from
the estates of American Indians and Alaska Natives:
a. Ownership interests in assets and
property, both real and personal, that are not described in this
subdivision.
b. Any
income and assets left as a remainder in an estate that do not derive from
protected property or sources in this subdivision.
7. Reparation payments to individuals.
Government reparation payments to special populations shall be exempt from
Medicaid estate recovery.
8.
Annuities. The Commonwealth considers annuities to be legal devices by which
ownership of assets, such as estates, is defined and therefore may seek
recovery from individuals' estates that may include such annuities.
D. Undue hardship. Whenever estate
recovery would work an undue hardship on the deceased individual's heirs, the
Commonwealth shall waive adjustment or recovery. Recovery from deceased
individuals' estates shall be waived when the heirs are themselves Medicaid
eligible. Anyone who may be affected by Medicaid estate recovery may apply for
an undue hardship waiver. DMAS shall determine the merit of such applications.
1. Special consideration shall be shown in
cases in which the estate subject to recovery is:
(i) the sole income-producing asset of
survivors (where such income is limited), such as a family farm or other family
business;
(ii) a homestead of
modest value; or
(iii) one in
which other compelling circumstances exist as may be set out in agency guidance
documents.
2. An undue
hardship exists when the Commonwealth determines that it would not be cost
effective to recover the assistance paid.
3. In cases where recovery is not waived and
heirs of the estate from which recovery is sought wish to satisfy the
Commonwealth's claim without selling a nonliquid asset that is subject to
recovery, alternative methods of recovery may be considered. DMAS may also
establish a reasonable payment schedule.
4. The Commonwealth may limit the hardship
waiver to the time period during which the undue hardship circumstances existed
or continue to exist.
5. An undue
hardship shall not exist if the beneficiary created the hardship by resorting
to estate planning methods under which the beneficiary divested assets in order
to avoid estate recovery.
E. DMAS shall establish collection procedures
to include identification of the estate administrator or executor,
determination of the medical assistance claim amount, notification procedures,
and such other procedures as are appropriate to pursue the recovery of medical
assistance expenditures. Such procedures will be set out in an agency guidance
document.
F. Recovery or adjustment
not cost effective. DMAS shall establish a cost effectiveness threshold below
which estate recovery will not be pursued.
1.
The Commonwealth may waive adjustment or recovery in cases in which it is
determined that it would not be cost effective for the Commonwealth to recover
from a deceased individual's estate. The estate administrator, executor,
survivor, or heir does not need to assert undue hardship in such
situations.
2. In determining
whether recovery would be cost effective, the department may consider, but is
not limited to consideration of, the following costs: staff time, litigation
costs, expert witness fees, deposition expenses, travel expenses, office
supplies, postage, advertising, and publishing costs. DMAS shall adjust the
cost effective threshold as the agency's administrative costs change.
G. Appeals. The DMAS Appeals
Division will administer appeals related to the recovery of funds pursuant to
12VAC30-110.
Statutory Authority
§§ 32.1-324 and 32.1-325 of the Code of
Virginia; 42 USC § 1396 et seq.
