department of health and social services
Division of Medicaid and Medical Assistance
PROPOSED
PUBLIC NOTICE
Estate Recovery Program
In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing to amend the Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) related to the Estate Recovery Program. Additionally, this action is technical in nature to allow for updated state plan pre print pages. This technical amendment to clarify the plan has no budget impact.
Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy and Program Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 by November 30, 2005.
The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons.
Summary of Proposed Amendment
Statutory Authority
Amending the Following Updated Pre Print State Plan Pages
Background
Under the estate recoveries provisions in the Omnibus Budget Reconciliation Act (OBRA) of 1993 and §1917(b) of the Social Security Act, states must recover certain Medicaid benefits correctly on behalf of an individual. Beneficiaries are notified of the Medicaid estate recovery program during their initial application for Medicaid eligibility and annual redetermination process. Federal law provides protections to ensure adequate notice to clients, prevention of undue hardship, and cost effectiveness under a state’s recovery program.
For individuals age 55 or older, States are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services. States have the option of recovering payments for all other Medicaid services provided to these individuals.
States are also required to establish procedures, under standards specified by the Secretary for waiving estate recovery when recovery would cause an undue hardship.
Summary of Proposed Amendment
For institutionalized individuals age 55 years or over, the time period for the exclusion of placement of a lien on real property due to intent to return home is being reduced from two (2) years to sixty (60) days. Due to the resources available to postpone and prevent institutionalization, such as the elderly and disabled waiver program, most admissions are permanent or for short-term rehabilitation of less than 60 days. In the nine (9) years that DHSS has been placing liens on real property, most of the properties excluded for the intent to return home were sold during the two (2) year exclusion period or the liens were placed after the two (2) years.
The following proposed changes are effective January 1, 2006:
The proposed amendment is subject to approval by the Centers for Medicare and Medicaid Services (CMS).
DSS PROPOSED REGULATION #05-64a
REVISIONS:
53
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
Citation
42 CFR 433.36(c) 4.17 Liens and Adjustments or
1902(a)(18) and Recoveries
1917(a) and (b) of
the Act (a) Liens
___The State imposes liens against an
individual's real property on account
of medical assistance paid or to be
paid.
The State complies with the
requirements of section 1917(a) of the
Act and regulations at 42 CFR 433.36
(c)-(g) with respect to any lien
imposed against the property of any
individual prior to his or her death on
account of medical assistance paid or
to be paid on his or her behalf.
___The State imposed liens on real
property on account of benefits
incorrectly paid.
X *The State imposes TEFRA liens
1917(a) (1) (B) on real property of an
individual who is an inpatient of a
nursing facility, ICF/MR or other
medical institution, where the
individual is required to contribute
toward the cost of institutional care all
but a minimal amount of income
required for personal needs.
The procedure by the State for
determining that an institutionalized
individual cannot reasonably be
expected to be discharged are
specified in Attachment 4.17-A.
(NOTE: If the State indicates in its
State plan that it is imposing TEFRA
liens, the State is required to
determine whether an institutionalized
individual is permanently
institutionalized and afford these
individuals notice, hearing
procedures, and due process
requirements.)
___The State imposes liens on both
real and personal property of an
individual after the individual's death.
*The State only imposes TEFRA liens on real property of inpatient long term care residents age 55 and over under OBRA 93.
53a
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
(b) Adjustments or Recoveries
The State complies with the requirements of section 1917(b) of the Act and regulations at 42 CFR 433.36 (h)-(l).
(1) For permanently institutionalized
individuals, adjustments or recoveries
are made from the individual's estate
or upon sale of the property subject to
a lien imposed because of medical
assistance paid on behalf of the
individual for services provided in a
nursing facility, ICF/MR, or other
medical institution.
___Adjustments or recoveries are
made for all other medical assistance
paid on behalf of the individual.
(2) ___The State determines
"permanent institutional status" of the
individuals under the age of 55 other
than those with respect to whom it
imposes liens on real property under
§1917(a)(1)(B) (even if it does not
impose those liens.
(3) For any individual who received
medical assistance at age 55 or older,
adjustments or recoveries of payments
are made from the individual's
estate for nursing facility
services, home and community-
based services, and related
hospital and prescription drug
services.
X In addition to adjustment of
recovery of payments for services
listed above, payments are adjusted or
recovered for all services under the
State Plan.
53b
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
(4) N/A The State disregards assets
or resources for individuals who
receive or are entitled to receive
benefits under a long term care
insurance policy as provided for
in Supplement 8b to Attachment
2.6-A.
N/A The State adjusts or recovers
from the individual's estate on
account of all medical assistance
paid for nursing facility and other
long-term care services provided
on behalf of the individual
(States other than California,
Connecticut, Indiana, Iowa, and
New York, which provide long-
term care insurance policy-based
asset or resource disregard, must
select this entry. These five States
may either check this entry or one
of the following entries).
N/A The State does not adjust or
recover from the individual's
estate on account of any medical
assistance paid for nursing
facility or other long-term care
services provided on behalf of the
individual.
N/A The State adjusts or recovers
from the assets or resources on
account of medical assistance
paid for nursing facility or other
long-term care services provided
on behalf of the individual to the
extent described below:
53c
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
(c) Adjustments or Recoveries: Limitations
The State complies with the
requirements of Section 1917(b)(2) of
the Act and regulations at 42 CFR
§422.36 (h) - (i) and the State Probate
law.
(1) Adjustment or recovery of
medical assistance correctly paid will
be made only after the death of the
individual's surviving spouse, and
only when the individual has no
surviving child who is under age 21,
blind, or disabled.
(2) With respect to liens on the home
of any individual who the State
determines is permanently
institutionalized and who must as a
condition of receiving services in the
institution apply their income to the
cost of care; the State will not seek
adjustment or recovery of medical
assistance paid on behalf of the
individual until such time as none of
the following individuals are residing
in the individual's home:
(a) a sibling of the individual
(who was residing in the
individual's home for at least one
year immediately before the date
the individual was
institutionalized).
(b) a child of the individual
(who was residing in the
individual's home for at least two
years immediately before the date
the individual was
institutionalized) who established
to the satisfaction of the State that
the care the child provided
permitted the individual to reside
at home rather than become
institutionalized.
(3) No money payments under
another program are reduced as a
means of adjusting or recovering
Medicaid claims incorrectly paid.
53d
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
(d) Attachment 4.17-A
(1) Specifies the procedures for
determining that an institutionalized
individual cannot reasonably be
expected to be discharged from the
medical institution and return home.
The description of the procedure
meets the requirements of 42 CFR
433.36(d).
(2) Specifies the criteria by which a
son or daughter can establish that he
or she has been providing care, as
specified under 42 CFR 433.36(f).
(3) Defines the following terms:
53e
Revision: HCFA-PM-95-3 (MB)
May 1995
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
(4) Describes the standards and
procedures for waiving estate
recovery when it would cause undue
hardship.
(5) Defines when adjustment or
recovery is not cost-effective. Defines
cost effective and includes
methodology or thresholds used to
determine cost-effectiveness.
(6) Describes collection procedures.
Includes advance notice requirements,
specifies the method for applying for
a waiver, hearing and appeals
procedures, and the time frames
involved.
DSS PROPOSED REGULATION #05-64b
REVISIONS:
ATTACHMENT 4.17-1
Page 1
State Plan Under Title XIX Of The Social Security Act
STATE/TERRITORY: DELAWARE
Liens and Adjustments or Recoveries
1. The State uses the following process for determining that an institutionalized individual cannot reasonably be expected to be discharged from the medical institution and return home:
The process for determining that an institutionalized individual cannot reasonably be expected to be discharged from the medical institution and return home is made based on the individual’s medical condition. The following is considered in making the determination, that it is reasonable that the client may return home within sixty (60) days:
A written statement or DMMA Form 407 completed and signed by the attending physician indicating that it is reasonable to expect the client will be able to return home within sixty (60) days of their admission date. Any lien placed on the real property of an institutionalized client will be released when that client is discharged to return to live in the home on the property.
2. The following criteria are used for establishing that permanently institutionalized individual's son or daughter provided care as specified under regulations at 42 CFR§433.36(f):
Delaware Health and Social Services (DHSS) shall not seek recovery in the case of a lien on an individual's home when there is a son or daughter over the age of twenty-one (21) lawfully residing in the home of the client whom:
a) has resided there for a period of at least two (2) years immediately prior to the date of the client’s admission to a long-term care service;
b) has lawfully resided there on a continuous basis since that time; and
c) can establish to the Department's satisfaction that he or she provided the care and assistance that permitted the recipient to reside in the home rather than in a long-term care facility.
The son or daughter may demonstrate having rendered care or assistance that resulted in a delay in the need for institutionalized care by means of a written statement from an institutionalized individual’s attending medical attending physician or another person or persons who have personal knowledge of the living circumstances of the individual. The written statement must indicate that the individual was able to remain in his or her home because of the care provided by the child. A written statement only from the child will not satisfy this requirement.
NOTE: DHSS can seek recovery from other assets in the estate.
3. The State defines the terms below as follows:
4. The State defines undue hardship as follows:
In cases of undue hardship, recovery may be waived for the period of the hardship. Undue hardship exists for certain individuals who have resided in the home of the DHSS long-term care recipient on a continuous basis for a period of at least two (2) years twenty-four consecutive months) immediately prior to the date of the DHSS long-term care recipient’s admission to DHSS long-term care services.
Individuals eligible for recovery waiver are limited to children, grandchildren, parents, or siblings of the DHSS long-term care recipient who meet one of the following conditions:
Receive any Federal or State funded assistance for living expenses (examples: SSI, AFDC, VA Aid and Attendance) and have no other home to which they can return.
OR
Have total family income less than or equal to 200% of the current monthly Federal Poverty limit, and have total family resources that can be converted to cash less than or equal to $3,000, including any real property that they own.
OR
DHSS will also not recover if the real property that is held in ownership with children, grandchildren, siblings or parents constitutes a business that contributes to the livelihood of that other individual or his/her dependents or heirs.
In cases of undue hardship, liens against the real property of DHSS long-term care recipients shall be filed, but a moratorium established on the lien. The moratorium on imposing the lien on the home will exist as long as the hardship condition continues to be met and as long as the above-described individuals reside in the DHSS long-term care recipient’s home on a continuous basis.
NOTE: The waiver for recovery will exist as long as one of the above conditions continues to be met and as long as the above-described individuals reside in the DHSS long-term care recipient’s home on a continuous basis.
5. The following standards and procedures are used by the State for waiving estate recoveries when recovery would cause undue hardship, and when recovery is not cost effective.
Standards: Same as number 4 above.
Procedures: If a hardship condition is requested and verified when the referral for estate recovery is received, it is tracked for eight (8) months. If at the end of eight (8) months the hardship condition still applies the recovery case is closed because Delaware probate law requires that claims against estates be filed within eight (8) months of the date of death.
Not Cost Effective: Criteria for determining cost effectiveness are set forth below in number 6.
6. The State defines when adjustment or recovery is not cost effective. The State defines cost effectiveness as follows (include methodology/thresholds used to determine cost effectiveness.
If there are no resources for burial and the total assets in the estate are less than $5,000 then, it is not considered cost effective to pursue because the State’s probate law requires that funeral expenses be paid first.
If there are resources for burial in the amount of $5,000 then it is considered cost effective to pursue if there are assets in the estate.
7. The State uses the following collection procedures (include specific elements contained in the advance action notice requirement, the method for applying for a waiver, hearing and appeals procedures, and time frames involved):
The State distributes a pamphlet, outlining estate recovery procedures, at the time of application to all applicants for long-term care services.
All persons receiving or applying for Long Term Care Medicaid Services are advised in writing about the estate recovery policy of DHSS at the time of application and redetermination, via the ERL1.DOC form titled, Recovery and Lien Policy for Persons Receiving or Applying for Long Term Care Services. This form outlines the following:
DSS PROPOSED REGULATION #05-64c
REVISIONS:
20310.1.1 Intent to Return
The principal place of residence may be excluded if the individual intends to return home after any length of time.
Temporary Institutionalization - If the attending physician has certified that a recipient is likely to return to his own home within a definite period (not to exceed 6 2 months) up to $75.00 per month may be protected for maintenance of the home.
(Break In Continuity of Sections)
20500.5.2 Lien Recovery Exceptions
DHSS shall not seek recovery in the case of a lien on an individual’s home when there is:
a son or daughter over the age of 21 lawfully residing in the home of the recipient, who has resided there for a period of at least two years immediately prior to the date of the recipient’s admission to a long-term care service, who has lawfully resided there on a continuous basis since that time, and who can establish to the Department’ssatisfaction that he or she provided the care that permitted the recipient to reside in the home rather than in a long-term care facility
or
Sibling lawfully residing in the home of the recipient for 2 years (24 months) one (1) year (12 months) immediately prior to the recipient’s admission for long term care services.
NOTE: DHSS can seek recovery from other assets in the estate.
(Break In Continuity of Sections)
20500.6.1 Exceptions to the Lien Policy
1. Clients intending to return home within 2 years sixty (60) days of their admission date to a facility.
a) If the stay in the facility is 2 years sixty (60) days or more, DHSS will determine if medical documentation indicates the client can reasonably be expected to return home, taking into consideration such factors as length of stay in a facility, mental capacity and physical condition place a lien on the property.
b) DHSS will provide the recipient of notice of the medical evaluation to determine if the recipient can return home. The results of the medical evaluation will also be provided to the recipient with the opportunity for a fair hearing before the department. The lien on the property will be released if the patient is discharged after sixty (60) days and returns to live in the home.
2. DHSS will not file a lien as long as the following individuals lawfully resided in the home before the date of application for long-term care services and continue to reside in the home while the applicant receives long-term care services:
a) Husband or wife of the applicant or recipient (NOTE: Common law marriages are not recognized by the Courts of Delaware).
b) Son or daughter who is blind or disabled as defined in accordance with the disability rule of the federally administered Supplemental Security Income (Title XVI of the Social Security Act).
c) Child under age 21 who is lawfully residing in the home.
d) Sibling lawfully residing in the home for 2 years (24 months) one (1) year (12 months) immediately prior to admission to a long term care facility and who has equity in the property.
3. DHSS will also not file a lien if the real property that is held in ownership with children, grandchildren, siblings or parents constitutes a business, which contributes to the livelihood of that other individual or his/her dependents or heirs.
(Break In Continuity of Sections)
20620.3 Community Spouse Income Allowance/Home Maintenance Disregard
Temporary Institutionalization - If the attending physician has certified that a recipient is likely to return to his own home within a definite period (not to exceed 6 2 months) up to $75.00 per month may be protected for maintenance of the home. This allowance may be used for mortgage payments, rent, insurance, utility bills, repairs, etc. Copies of receipts, contracts or other types of verification shall be obtained and kept in the DSS record.
The $75 home maintenance disregard may not be allowed if the community spouse is receiving the spousal income allowance.