CO Code § 25.5-4-302 (2021)
2021 Colorado Code|Title 25.5 - Health Care Policy and Financing|Article 4 - Colorado Medical Assistance Act - General Medical Assistance|Part 3 - Recovery|§ 25.5-4-302. Recovery of Assets

  The general assembly hereby finds, determines, and declares that the cost of providing medical assistance to qualified recipients throughout the state has increased significantly in recent years; that such increasing costs have created an increased burden on state revenues while reducing the amount of such revenues available for other state programs; that recovering some of the medical assistance from the estates of medical assistance recipients would be a viable mechanism for such recipients to share in the cost of such assistance; and that such an estate recovery program would be a cost-efficient method of offsetting medical assistance costs in an equitable manner. The general assembly also declares that in order to ensure that medicaid is available for low-income individuals reasonable restrictions consistent with federal law should be placed on the ability of persons to become eligible for medicaid by means of making transfers of property without fair and valuable consideration.      Medical assistance paid on behalf of any individual who was fifty-five years of age or older when the individual received such assistance may be recovered by the state department from the estate of such individual in accordance with paragraph (c) of this subsection (2).    Medical assistance paid on behalf of any individual who is institutionalized may be recovered by the state department from the estate of such individual in accordance with paragraph (c) of this subsection (2).    The state department shall establish an estate recovery program only insofar as such program is in accordance with Title XIX of the federal “Social Security Act”, 42 U.S.C. sec. 1396p, as amended, and shall not take any action to recover medical assistance when the amount of assistance to be recovered is economically inappropriate in relation to expenses of recovery.       The state department is authorized to file liens against any property of an individual who is institutionalized and from whom the state department may recover medical assistance pursuant to paragraph (b) of subsection (2) of this section.    The state department may compromise, settle, or waive any recovery of medical assistance authorized pursuant to subsection (2) of this section upon good cause shown.    Subject to any limitation concerning estate recovery in Title XIX of the federal “Social Security Act”, 42 U.S.C. sec. 1396p, as amended, the amount of any medical assistance paid pursuant to the provisions of this article and articles 5 and 6 of this title is a claim against the estate pursuant to the provisions of section 15-12-805 (1), C.R.S.    The state board shall promulgate rules to implement the provisions of this section, including rules limiting the eligibility for medical assistance if the person made a voluntary assignment or transfer of property without fair and valuable consideration prior to applying for medical assistance. A contract for an exempt burial fund for an individual shall include a provision restricting the full amount to the cost of the burial and stating that any portion not expended for the burial costs shall be refunded to the state department by the mortuary as reimbursement for the cost of medical assistance provided to the individual. Said rules shall be in accordance with Title XIX of the federal “Social Security Act”, 42 U.S.C. sec. 1396p, as amended.    Effective upon the implementation of a private-public partnership program for financing long-term care pursuant to section 25.5-6-110, this section shall apply to participants of such program only after excluding from the amount that may otherwise be recovered from such person's estate an amount allowed by rules adopted by the state board in accordance with section 25.5-6-110.      History. Source: L. 2006: Entire article added with relocations, p. 1836, § 7, effective July 1.    Editor's note:   This section is similar to former § 26-4-403.3 as it existed prior to 2006.   ANNOTATION   Law reviews. For article, “The Impacts of Trusts on Public Benefits for Disabled Persons”, see 46 Colo. Law. 43 (Nov. 2017).   Annotator's note. Since § 25.5-4-302 is similar to § 26-4-403.3 as it existed prior to the 2006 amendments relocating article 4 of title 26 to title 25.5, relevant cases construing that provision have been included in the annotations to this section.   Where section requires the department to establish an estate recovery program consistent with federal law and federal standards require the state to adopt procedures under which individuals who will be affected by recovery will have the right to apply for an undue hardship waiver, the department's rule allowing for service of notice on the personal representative of the decedent's estate is reasonably calculated to give notice to the affected individuals. However, department's notice was fatally defective since it did not instruct the personal representative to forward the notice to affected individuals nor did it identify who should receive the notice. Estate of Schiola v. Colo. Dept. of Health Care Policy & Fin., 51 P.3d 1080 (Colo. App. 2002).   The corrected notice of estate claim sent to the estate remedied the deficiencies in the original notice and provided the information required under Estate of Schiola v. Colo. Dept. of Health Care Policy & Fin., annotated above, and the department rules. In re Estate of Kochevar, 94 P.3d 1253 (Colo. App. 2004).   Waiver of recovery of medicaid expenses should only benefit those individuals who qualify for and are granted a waiver to prevent financial burdens upon the state. Cobeneficiaries of a beneficiary granted a waiver may not benefit from the waiver. In re Estate of Ligon, 160 P.3d 361 (Colo. App. 2007).