North Carolina § 108A-70 - 5. Medicaid Estate Recovery Plan.

§ 108A-70. 5. Medicaid Estate Recovery Plan.

There is established in the Department of Health and Human Services, the Medicaid Estate Recovery Plan, as required by the Omnibus Budget Reconciliation Act of 1993, to recover from the estates of recipients of medical assistance an equitable amount of the State and federal shares of the cost paid for the recipient. The Department shall administer the program in accordance with applicable federal law and regulations, including those under Title XIX of the Social Security Act, 42 U.S.C. § 1396(p). The following definitions apply in this section: Recodified as subdivision (b)(4) of this section by Session Laws 2021-88, s. 9(d). Estate. - All the real and personal property considered assets of the estate available for the discharge of debt pursuant to G.S. 28A-15-1. The Department has all rights available to estate creditors, including the right to qualify as personal representative or collector of an estate. For individuals who have received benefits under a qualified long-term care partnership policy as described in G.S. 108A-70.4, this term also includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement. Repealed by Session Laws 2007-442, s. 1, effective August 23, 2007. Medical assistance. - Medical care services paid for by the North Carolina Medicaid Program on behalf of the recipient as follows: If the recipient of any age is receiving medical care services as an inpatient in a nursing facility, intermediate care facility for individuals with intellectual disabilities, or other medical institution, and cannot reasonably be expected to be discharged to return home. If the recipient is 55 years of age or older and is receiving one or more of the following medical care services: Nursing facility services. Home and community-based services. Hospital care. Prescription drugs. Personal care services. The amount the Department recovers from the estate of any recipient shall not exceed the amount of medical assistance made on behalf of the recipient and is recoverable only for medical care services prescribed in subsection (b) of this section. The Department is a sixth-class creditor, as prescribed in G.S. 28A-19-6, for purposes of determining the order of claims against an estate; however, judgments in favor of other sixth-class creditors docketed and in force before the Department seeks recovery for medical assistance shall be paid prior to recovery by the Department. The Department of Health and Human Services shall adopt rules pursuant to Chapter 150B of the General Statutes to implement the Plan, including rules to waive whole or partial recovery when this recovery would be inequitable because it would work an undue hardship or because it would not be administratively cost-effective and rules to ensure that all recipients are notified that their estates are subject to recovery at the time they become eligible to receive medical assistance. Repealed by Session Laws 2007-442, s. 1, effective August 23, 2007. With regard to any recipient who has received compensation pursuant to Part 30 of Article 9 of Chapter 143B of the General Statutes, the Department shall reduce the amount of any recovery it seeks from the deceased recipient's estate under this section by the amount of the resource disregard provided for in G.S. 143B-426.56(b)(1). History (1993 (Reg. Sess., 1994), c. 769, s. 25.47(a); 1997-443, s. 11A.118(a); 2002-126, s. 10.11(b); 2005-276, s. 10.21C(a); 2005-345, s. 16; 2006-66, s. 10.9B; 2007-145, s. 10; 2007-323, ss. 10.42(a), (b); 2007-442, s. 1(a); 2010-68, s. 2; 2012-18, s. 3.6; 2013-378, s. 2; 2014-100, s. 6.13(f); 2021-62, s. 4.1; 2021-88, ss. 9(d), (e).) Contingent Effective Date. - Session Laws 2010-68, which amended this section, in s. 5 provides: "This act becomes effective January 1, 2011, or 60 days after approval of the Medicaid State Plan amendment, whichever is later." The plan was approved January 6, 2011. Editor's Note. - Session Laws 2005-276, s. 10.21C(c), as amended by Session Laws 2005-345, s. 16, as amended by Session Laws 2006-66, s. 10.9B, as amended by Session Laws 2007-145, s. 10, as amended by Session Laws 2007-323, s. 10.42(a), made the amendments to this section by Session Laws 2005-276, s. 10.21C(a), effective July 1, 2008, and applicable to recipients of medical assistance on and after that date. However, Session Laws 2007-323, s. 10.42(b) provides: "In the event the effective date of Section 10.21C(c) of S.L. 2005-276 made applicable under subsection (a) of this section conflicts with the effective date of a provision in House Bill 1537, enacted by the 2007 General Assembly, pertaining to Medicaid Estate Recovery, the effective date contained in House Bill 1537 shall apply." House Bill 1537 was enacted as Session Laws 2007-442, effective August 23, 2007. As a result, the amendments by Session Laws 2007-442, which reversed many of the 2005 amendments and made additional changes, took effect August 23, 2007. Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'." Session Laws 2005-276, s. 46.5 is a severability clause. Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'." Session Laws 2006-66, s. 28.6 is a severability clause. Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'." Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium." Session Laws 2007-323, s. 32.5 is a severability clause. Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'" Session Laws 2014-100, s. 38.7, is a severability clause. Effect of Amendments. - Session Laws 2005-276, s. 10.21C(a), as amended by Session Laws 2005-345, s. 16, as amended by Session Laws 2006-66, s. 10.9B, as amended by Session Laws 2007-145, s. 10, and as amended by Session Laws 2007-323, s. 10.42, effective August 23, 2007, and applicable to recipients of medical assistance on and after that date, in subsection (a), in the first sentence, deleted "to recover from the estates of recipients of medical assistance an equitable amount of the State and federal shares of the cost paid the recipient" preceding "1993" and added the last two sentences; substituted "of any age is receiving" for "is receiving these" in sub-subdivision (b)(1)a.; rewrote sub-subdivision (b)(1)b.; added subdivision (b)(3); in subsection (c), at the beginning of the second sentence, added "To the extent that allowable Medicaid claims are not satisfied as a result of the execution of any liens held by the Department"; and in subsection (d), deleted "including rules to waive whole or partial recovery when this recovery would be inequitable because it would work an undue hardship or because it would not be administratively cost-effective and rules" following "Plan." Session Laws 2007-442, s. 1(a), effective August 23, 2007, rewrote subsection (a); in subdivision (b)(1), deleted "and prescription drugs related to nursing facility services or home and community based services" from the end of subdivision (b)(1)b.3., added (b)(1)b.3a., deleted (b)(1)b.5. through (b)(1)b.9; substituted "The" for "To the extent that allowable Medicaid claims are not satisfied as a result of the execution of any liens held by the Department, the" at the beginning of the second sentence of subsection (c); inserted "including rules to waive whole or partial recovery when this recovery would be inequitable because it would work an undue hardship or because it would not be administratively cost-effective and rules" in subsection (d); and deleted former subsection (e) concerning trust assets of disabled individuals. Session Laws 2010-68, s. 2, effective January 1, 2011, or 60 days after the approval of the Medicaid State Plan amendment, whichever is later, rewrote the introductory language in subsection (b), which formerly read: "As used in this section"; in the introductory paragraph in subdivision (b)(1), substituted "Medical assistance. - Medical care" for "'Medical assistance' means medical care"; and in subdivision (b)(2), substituted "Estate. - All" for "'Estate' means all" and added the last sentence. Session Laws 2012-18, s. 3.6, effective June 11, 2012, substituted "sixth-class" for "fifth-class" in two places in subsection (c). Session Laws 2013-378, s. 2, effective October 1, 2013, added the second sentence in subdivision (b)(2). Session Laws 2014-100, s. 6.13(f), effective July 1, 2014, added subsection (f). Session Laws 2021-88, ss. 9(d), (e), effective July 22, 2021, recodified subdivision (b)(1) as subdivision (b)(4), and sub-sub-subdivisions (b)(4)b.3a. and (b)(4)b.4 as sub-sub-subdivisions (b)(4)b.4. and (b)(4)b.5.; substituted "this term” for "‘estate'” and "extent of the interest” for "extent of such interest” in subdivision (b)(2); inserted "as follows” in subdivision (b)(4); in sub-subdivision (b)(4)a., substituted "individuals with intellectual disabilities” for "the mentally retarded”, and made a stylistic change; and substituted "is recoverable” for "shall be recoverable,” and "however, judgments” for "provided, however, that judgments” in subsection (c).