16 Del. Admin. Code § 20000-20500
BACKGROUND
The Delaware Department of Health and Social Services (DHSS), in order to comply with Chapter 50, Title 25 of the Delaware Code and Section 1917 of the Social Security Act as amended by Section 13612 of the Omnibus Budget Reconciliation Act of 1993, and Delaware House Bill No. 437 as amended by House Amendment Nos. 1, 2, and 4, has established policies and procedures for filing liens against the real property, and recovering from estates of, individuals applying for or receiving DHSS long-term care services.
These policies and procedures shall apply to individuals age 55 and over who are applying for DHSS Long Term Care Services. This includes nursing facility services, home and community-based waiver services, and community-based long-term care services and supports.
Medicaid benefits paid for Medicare cost-sharing expenses, with a date of service on or after January 1, 2010, are exempted from estate recovery. These benefits include Part A and B premiums, deductibles, coinsurance, and co-payments. The date of service for deductibles, coinsurance, and co-payments is the date the request for payment is received by the State Medicaid agency. The date of service for premiums is the date the State Medicaid Agency pays the premium.
16 DE Reg. 423 (10/01/12)
All applicants will be informed of the Estate Recovery and Lien Policy and procedures at the time of application. Recipients who turn 55 after their cases are active will be informed of the policy and procedures at their first financial redetermination after their 55th birthday.
Notification of the policy will be via recovery forms and/or a letter, that will be provided to the applicant or the applicant's representative.
16 DE Reg. 423 (10/01/12)
The following definitions apply to this section:
Child means offspring or legally adopted child of the recipient or the applicant.
Civil Union Partner means an individual who enters into a legal union with another individual of the same sex.
Estate means all real property, as well as all personal property that constitutes assets of the individual's estate as described in Chapter 19 of Title 12 of the Delaware Code.
Family means legal spouse, dependent parents (claimed for income tax purposes), and children.
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.
Legal representative means power of attorney over property or guardian of property.
Long-term care means a service provided in a long-term care facility or in the home as an alternative to institutionalization (known as Long-Term Care Community Services or home and community-based services (1915(c) waivers).
Real Property means land, including houses or immovable structures or objects attached permanently to the land. The terms "real estate," "realty," and "real property are used synonymously with one another and designate real property in which an individual has ownership rights and interests.
Residing in the home on a continuous basis means using the home as the principal place of residence.
Sibling means brother, sister, legally adopted brother or sister, half brother or half sister.
16 DE Reg. 423 (10/01/12)
DHSS shall seek recovery after the individual's death or upon sale of the property subject to a lien, when long term care assistance has been paid on behalf of an individual.
DHSS shall not seek recovery as long as there is:
a surviving spouse;
surviving 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) who was residing in the home on a continuous basis immediately prior to the death of the individual;
or
Child under age 21.
NOTE: If DHSS cannot seek recovery after the recipient's death due to the exceptions noted above and DHSS cannot recover from the estate due to Title 12 of the Delaware Code, Section 2102, no further action will be taken to recover.
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's satisfaction 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 one (1) years (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.
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 (24 consecutive months) immediately prior to the date of the DHSS long-term care recipient's admission to DHSS long term care services.
These individuals are limited to a civil union partner, children, grandchildren, parents, or siblings of the DHSS long-term care recipient who meet 1 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 a civil union partner, children, grandchildren, siblings or parents constitutes a business that contributes to the livelihood of that other individual or his/her dependents or heirs.
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.
The maximum amount to be recovered will be the total of funds disbursed or incurred by DHSS with any Federal matching dollars during the time an individual receives long-term care services from DHSS.
16 DE Reg. 423 (10/01/12)
DHSS will place a lien against the real property of recipients who are inpatients in a nursing facility, intermediate care facility for individuals with developmental disabilities or other medical institution whose property does not meet the exemption or undue hardship conditions.
NOTE: The lien policy does not apply to recipients of Long Term Care Community Services or Division of Developmental Disabilities Services Waiver unless they become institutionalized.
16 DE Reg. 423 (10/01/12)
9 DE Reg. 1076 (01/01/06)
16 DE Reg. 423 (10/01/12)
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.
This means DHSS will not force the sale of the property. 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 (24 consecutive months) immediately prior to the date of the DHSS long-term care recipient's admission to DHSS long-term care services.
These individuals are limited to children, grandchildren, parents, or siblings of the DHSS long-term care recipient who meet 1 of the following conditions:
OR
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.
16 Del. Admin. Code § 20000-20500