Virginia Administrative Code › Title 12 - HEALTH › Agency 30 - DEPARTMENT OF MEDICAL ASSISTANCE SERVICES › Chapter 20 - ADMINISTRATION OF MEDICAL ASSISTANCE SERVICES › Part II - Liens/Estate Recoveries › Section 12VAC30-20-141 - Estate recoveries

Current through Register Vol. 40, No. 24, July 15, 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.