An Act to Amend the Laws Regarding Estate Recovery and Planning for Long-term Care
Maine Legislature, Session 131, LD 1406
Committee: Health and Human Services
Sponsors: HASENFUS, BALDACCI, FAY
Amends: 22 MRSA §14

Legislative Document
No. 1406
H.P. 902
House of Representatives, March 30, 2023
An Act to Amend the Laws Regarding Estate Recovery and 
Planning for Long-term Care
Reference to the Committee on Health and Human Services suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative HASENFUS of Readfield.
Cosponsored by Senator BALDACCI of Penobscot and
Representative: FAY of Raymond.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §14, sub-§2-I, ¶H is enacted to read:
H.  Beginning January 1, 2024, the amount of the claim collected under this subsection 
is adjusted by subtracting the cost of collecting the claim and the amount attributable 
to federal payments to the State made according to the Federal Medical Assistance 
Percentage.  The remainder must be refunded to the estate of the deceased MaineCare 
recipient.
Sec. 2.  Asset transfer for eligibility; standard of proof; amend rules.  The 
Department of Health and Human Services shall amend its rules in Chapter 332: MaineCare 
Eligibility Manual, Part 15, Transfer of Assets, in Section 1.6 to remove the standard of 
"clear and convincing evidence" required to prove that a transfer of an asset was not 
intended at the time of transfer to result in eligibility for Medicaid and replace it with a 
"preponderance of evidence" standard.  The preponderance of evidence standard must 
apply to all asset transfers, including payments to a person who is a family member or 
guardian for the provision of services in assisting with activities of daily living or 
instrumental activities of daily living that prevented the applicant's transfer to residential 
or nursing facility care.  The department shall adopt rules to implement this section no later 
than January 1, 2024.  Rules adopted pursuant to this section are major substantive rules as 
defined in the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A.
Sec. 3.  Public information regarding estate recovery in MaineCare 
program.  After consultation with interested parties and advocates and before January 1, 
2024, the Department of Health and Human Services shall prepare and publish 
informational documents, including brochures and postings on the department's publicly 
accessible website, educating the public about estate recovery requirements under the 
Maine Revised Statutes, Title 22, section 14.  The publications must include information 
about long-term care planning and transferring and sheltering of assets as allowed under 
any federal and state law and rules.  The department shall ensure that the information is 
broadly distributed to MaineCare members, area agencies on aging and other relevant 
organizations.
Sec. 4.  Public information regarding home and community-based services 
provided by family member or guardian.  After consultation with interested parties 
and advocates and before January 1, 2024, the Department of Health and Human Services 
shall prepare and distribute a brochure written in clear and easily understandable language 
describing the circumstances, requirements and eligibility to allow family members or legal 
guardians to be reimbursed for providing personal care services to a family member who 
is eligible to receive home and community-based services under the MaineCare program 
or a state-funded program.  The brochure must include, at minimum, the following:
1.  Information on which programs allow for family members or guardians to be 
reimbursed for providing services;
2.  Information on how and where the family member can apply and how to register as 
a personal care agency, if required.  It must also include information for the person eligible 
to receive home and community-based services on how and where to apply and must 
include information on self-direction services, as applicable; and
3.  Any relevant information on consequences with respect to the estate recovery 
program of the Maine Revised Statutes, Title 22, section 14 of a family member being 
reimbursed for providing personal care services if it becomes necessary for the family 
member receiving services to enter a long-term care facility.
The brochure must be available to any new applicants applying for home and 
community-based services provided under the MaineCare program or a state-funded 
program.  The department shall also make the brochure available to the general public and 
to the area agencies on aging and post it on the department's publicly accessible website.
SUMMARY
This bill requires the Department of Health and Human Services to return the state 
portion of estate recovery under the MaineCare program to the estate.  This requirement 
does not impact the portion that is required to be paid to the Federal Government for estate 
recovery for Medicaid.  The bill requires the department to amend its rules in Chapter 332: 
MaineCare Eligibility Manual, Part 15, Transfer of Assets, to change the standard for 
transfer of assets from "clear and convincing evidence" to "a preponderance of evidence."  
The rule is a major substantive rule.  The bill also requires the department to develop 
educational materials to assist individuals with accessing programs that allow family 
members or legal guardians to be reimbursed for providing personal care services to a 
family member who is eligible to receive home and community-based services under the 
MaineCare program or a state-funded program.  It also requires the department to develop 
educational materials to assist individuals with long-term care planning, estate planning 
and asset transferring and sheltering.