Pennsylvania Code › Title 55 - HUMAN SERVICES › Part II - Public Assistance Manual › Subpart G - Restitution and Reimbursement › Chapter 258 - MEDICAL ASSISTANCE ESTATE RECOVERY › Section 258.3 - Property liable to repay the Department

Current through Register Vol. 54, No. 28, July 13, 2024
(a) All estate property is subject to the
				  Department's claim. Estate property includes all real and personal property of
				  a decedent which is subject to administration by a decedent's personal
				  representative, whether actually administered or not administered.
(b) Property held by a decedent and another
				  at the time of death as joint tenants with rights of survivorship, or as
				  tenants by the entireties, is not subject to the Department's claim.
(c) Life insurance which is payable to the
				  decedent's estate is subject to the Department's claim, even if the life
				  insurance policy contains a facility of payment clause. A facility of payment
				  clause is a provision which authorizes direct payment to a person. The proceeds
				  of life insurance on the decedent which is directly payable to a beneficiary is
				  not subject to the Department's claim.
(d) Assets placed in trust prior to the death
				  of the decedent, including irrevocable burial reserves, are not subject to the
				  Department's claim if the assets are not payable to the decedent's estate.
				  Trust assets and burial reserve proceeds which are or become payable to the
				  decedent's estate are subject to the Department's claim. Assets designated for
				  a testamentary trust are subject to the Department's claim. A testamentary
				  trust is a trust created by the will of the decedent.
(e) A trust which meets the requirements of
				  §
										178.7(f)
				  (relating to treatment of trust amounts for all categories of MA for trusts
				  established on or after July 30, 1994) is not subject to the Department's
				  claim.
(f) Property within the
				  scope of
				  20 Pa.C.S. §
											3101
				  (relating to payments to family and funeral directors), is subject to the
				  Department's claim.
(g) The
				  following special populations are exempt from estate recovery:
(1) Certain income, resources and property of
				  Native American Indians and Alaska Natives. Exempt items include:
(i) 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 United States Claims
				  Court.
(ii) Ownership interest in
				  trust or nontrust property, including real property and improvements including
				  the following:
(A) Property located on any
				  Federally recognized Native American Indian Tribe's reservation, Pueblo or
				  Colony, including former reservations in Oklahoma, Alaska Native regions
				  established by Alaska Native Claims Settlement Act and Indian allotments or
				  near a reservation as designated and approved by the Bureau of Indian Affairs
				  of the United States Department of the Interior.
(B) For any Federally-recognized Tribe not
				  described in clause (A), property located within the most recent boundaries of
				  a prior Federal reservation.
(C)
				  Protection of nontrust property described in clauses (A) and (B) is limited to
				  circumstances when it passes from an Native American Indian as defined in
				  section 4 of the Indian Health Care Improvement Act (25 U.S.C.A. §
														1603) to one or more relatives by blood,
				  adoption or marriage, including Native American Indians not enrolled as member
				  of a Tribe and non-Indians, such as spouses and stepchildren that their culture
				  would nevertheless protect as family members; to a Tribe or Tribal
				  organization; or to one or more Native American Indians.
(iii) Income left as a remainder in an estate
				  derived from property protected in subparagraph (ii) that was either collected
				  by a Native American Indian, or by a Tribe or Tribal organization and
				  distributed to Native American Indians, as long as the individual can clearly
				  trace it as coming from the protected property.
(iv) Ownership interests 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 income either collected by a Native
				  American Indian, or by a Tribe or Tribal organization and distributed to Native
				  American Indians derived from these sources as long as the individual can
				  clearly trace it as coming from protected sources.
(v) Ownership interests in or usage rights to
				  items not covered by subparagraphs (i)-(iv) that have unique religious,
				  spiritual, traditional or cultural significance or rights that support
				  subsistence or a traditional life style according to applicable Tribal law or
				  custom.