10.09.24.15

.15 Liens, Adjustments, and Recoveries.

A. Definitions. In this regulation, the following terms have the meanings indicated:

(1) "Dependent" means a:

(a) Child of the decedent, or the decedent's descendants;

(b) Sibling, including half or step, of the decedent; or

(c) Parent of the decedent, or the decedent's ancestors.

(2) "Discharge from a long-term care facility and return home" means the release of a person from that facility for the purpose of returning to the home for permanent residence.

(3) "Equity interest in the home" means co-ownership of the home which is not the result of a transfer of the property for less than the fair market value within 2 years before institutionalization.

(4) "Estate" means all real and personal property and other assets included within an individual's estate, as defined for purposes of State probate law.

(5) "Group health plan" means any plan, including a self-insured plan, of or contributed to by an employer to provide health care, directly or otherwise, to the employer's employees, former employees, or their families.

(6) "Incorrect payment of benefits" means payment of benefits to which a recipient is not entitled.

(7) "Lawfully residing in the home" means residing in the home with the permission of the owner or, if under guardianship, the owner's legal guardian.

(8) "Real property" means property which is fixed or immovable, such as land or a building.

(9) "Residing in the home on a continuous basis" means using the home as the principal place of residence.

(10) "Substantial hardship" means the Department's estate claim will result in the sale or transfer of the real property owned by the decedent and that the sale or transfer will result in the removal from the property of a dependent who:

(a) Resided in the property on the date of the decedent's death;

(b) Has resided in the property continuously for a period beginning at least 2 years before the decedent's death; and

(c) Cannot provide an alternate residence.

A-1. The Department shall make a claim against income or resources, or both, of a recipient for benefits correctly paid, or to be paid, under the following circumstances:

(1) Under a court order;

(2) In any situation in which a recipient has a cause of action against any person for medical expenses arising from that cause of action; or

(3) As a result of payment by the Department for services for which health care coverage was available to a recipient.

A-2. Liens.

(1) Incorrect Payments. Following a court judgment which has determined that benefits were incorrectly paid for a person, the Department shall impose a lien against the person's property, both personal and real, before the person's death, on account of Medical Assistance claims paid or to be paid on the person's behalf.

(2) Correct Payments. Except as provided under §A-2(3) of this regulation, the Department shall impose a lien against the real property of a person, before the person's death, on account of Medical Assistance claims paid or to be paid on that person's behalf under the following circumstances:

(a) The person owns real property, is a patient in a long-term care facility, and is required, as a condition of receiving Medical Assistance services, to spend for costs of medical care all but a minimal amount of his income required for personal needs; and

(b) The Department has determined, after notice and opportunity for a hearing, that there is no reasonable expectation that the person can be discharged from the long-term care facility and return home.

(3) Restrictions on Placing a Lien. The Department may not impose a lien on the home of an institutionalized individual under §A-2(2) of this regulation if any of the following individuals lawfully reside in the home. The institutionalized individual's:

(a) Spouse;

(b) Child as defined in Regulation .02B of this chapter;

(c) Son or daughter who is blind or disabled as defined in Regulation .05D and E of this chapter; or

(d) Sibling, who has an equity interest in the home and who was residing in the home for a period of at least 1 year immediately before the date of the institutionalized person's admission to a long-term care facility.

(4) Termination of a Lien. Any lien imposed on a person's real property under §A-2(2) of this regulation will dissolve if the person is discharged from a long-term care facility and returns to the home.

(5) Delay in the Imposition of a Lien.

(a) When the imposition of a lien against a person's property is delayed because of the person's mental incompetence, eligibility may be granted pending the appointment of a legal representative for the person.

(b) The effective date of the lien shall be the date eligibility was granted.

A-3. Adjustments and Recoveries.

(1) The Department shall seek recovery of Medical Assistance benefits correctly paid:

(a) From the estate of any individual who was 55 years old or older when the individual received Medical Assistance benefits; and

(b) From the estate or upon sale of the property on which a lien was imposed and which was owned by an individual described under §A-2(2) of this regulation.

(2) The Department shall seek recovery under §A-3(1) of this regulation of Medical Assistance benefits correctly paid only:

(a) After the death of the person's surviving spouse;

(b) When the individual has no surviving child as defined in Regulation .02B of this chapter;

(c) When the person has no surviving son or daughter who is blind or disabled as defined in Regulation .05D and E of this chapter; and

(d) In the case of liens imposed on a person's home under §A-2(2) of this regulation, when there is no:

(i) Sibling of the person lawfully residing in the home, who has resided there for a period of at least 1 year immediately before the date of the person's admission to a long-term care facility and who has lawfully resided there on a continuous basis since that time, or

(ii) Son or daughter of the person lawfully residing in the home, who has resided there for a period of at least 2 years immediately before the date of the person's admission to a long-term care facility, who has lawfully resided there on a continuous basis since that time, and who can establish to the Department's satisfaction that he or she provided the care that permitted the person to reside in the home rather than in the facility.

(3) The Department may not seek recovery from the estate of a deceased individual under §A-3(1) and (2) of this regulation if, in the Department's judgment, substantial hardship exists.

(4) The Department may not seek recovery from the estate of a deceased individual for Medical Assistance payments of Medicare premiums, copayments, or deductibles.

(5) The Department may not seek recovery from the estate of a deceased individual to the extent of the value of LTC partnership policy benefits furnished to the individual up to the time of death.

B. The Department shall accept reimbursement when voluntarily offered by a current or former recipient or someone acting on his behalf.

C. Repealed.

D. Extended Benefits Pending a Hearing Decision.

(1) The Department or its designee shall consider reimbursement in all cases in which:

(a) A recipient received extended benefits pending a hearing and decision by an administrative law judge at the Office of Administration Hearings; and

(b) The administrative law judge affirmed the original decision of the Department or its designee.

(2) The Department or its designee shall institute procedures to recover the cost of any expenditures made on behalf of a recipient in cases identified in §D(1) of this regulation. This provision may not apply to a individual who requested a hearing and extended benefits resulting from a bona fide belief that the Department or its designee has taken an adverse action erroneously.

E. The Department shall investigate and take appropriate action in all cases in which eligibility has been incorrectly established as a result of the action or inaction of a recipient, representative, or person acting responsibly for the recipient.

F. Assignment of Benefits, Release of Information, and Requirement of Cooperation by Recipient in Recovery Procedures.

(1) A recipient of Medical Assistance is deemed to have created an authorization for the release to the Department of all data, records, and information by insurance companies, nonprofit health service plans, providers of medical care, employers, unions, governmental agencies, and any other agencies, organizations, or individuals necessary for the Department's pursuit of third-party reimbursement. The authorization extends to all information relevant to third-party reimbursement or third-party health care coverage.

(2) The local department of social services shall take reasonable measures to identify and report to the Department on a form designated by the Department all possible third-party benefits available to persons determined eligible for Medical Assistance.

(3) The Department shall collect available benefits from third parties determined liable to pay for services received under Medical Assistance.

(4) An individual who receives medical services that was or will be paid for by Medical Assistance is deemed to have made assignment to the Department of:

(a) His own rights to any medical care support available under an order of a court or an administrative agency, and any third-party payments for medical care; and

(b) The rights of any other individual eligible under the plan, for whom he can legally make an assignment.

(5) Assignment of rights to benefits does not include assignment of rights to Medicare benefits.

(6) An applicant or recipient of Medical Assistance shall cooperate in:

(a) Establishing paternity for a child born out of wedlock for whom he can legally assign rights; and

(b) Obtaining medical care support and payments for himself and any other individual for whom he can legally assign rights.

(7) Waiver.

(a) The Department shall waive the requirements in §G(6) of this regulation if the Department, through the local department of social services, determines that the individual has good cause for refusing to cooperate.

(b) With respect to establishing support paternity of a child born out of wedlock or obtaining medical care and payments for a child for whom the individual can legally assign rights, the Department, through the local department of social services, shall find that cooperation is against the best interests of the child if it is reasonably anticipated that cooperation will result in:

(i) Physical harm to the child for whom support is to be sought;

(ii) Emotional harm to the child for whom support is to be sought;

(iii) Physical harm to the parent or caretaker relative with whom the child is living which reduces the person's capacity to care for the child adequately; or

(iv) Emotional harm to the parent or caretaker relative with whom the child is living, of such nature or degree that it reduces the person's capacity to care for the child adequately.

(c) If at least one of the following circumstances exists, and the Department, through the local department of social services, believes that because of the existence of that circumstance, in the particular case, proceeding to establish paternity or secure support would be detrimental to the child for whom support would be sought, the Department, through the local department of social services, shall find that cooperation is against the best interests of the child:

(i) The child for whom support is sought was conceived as a result of incest or forcible rape;

(ii) Legal proceedings for the adoption of the child are pending before a court of competent jurisdiction; or

(iii) The applicant or recipient is currently being assisted by a public or licensed private social agency to resolve the issue of whether to keep the child or relinquish him for adoption, and the discussions have not gone on for more than 3 months.

(d) If the Department of Human Services has made a finding that good cause for refusal to cooperate does or does not exist, the Department shall adopt that finding as its own for this purpose.

(e) With respect to obtaining medical care support and payments for an individual in any case not covered by §G(7)(b) or (c) of this regulation, the Department, through the local department of social services, shall find that cooperation is against the best interests of the individual or other person to whom Medical Assistance is being furnished, if it is reasonably anticipated that cooperation will result in reprisal against, and cause physical or emotional harm to, the individual or other person.

(8) The Department or its designee shall:

(a) Deny or terminate eligibility for any applicant or recipient who refuses to cooperate as required under §G(6) of this regulation unless cooperation has been waived;

(b) Provide Medical Assistance to any individual who:

(i) Cannot legally assign his own rights, and

(ii) Would otherwise be legally eligible for Medical Assistance but for the refusal by a person legally able to assign his rights or to cooperate as required by this regulation.

(9) The assignment created by this regulation shall be effective as long as the recipient is eligible for Medical Assistance and remains effective for all services paid by the Program during this period of eligibility, and for those services which were erroneously provided to ineligible persons and paid for by the Program.