Rule 111-3-8-.04 - Recovery for Payments Made on Behalf of Medicaid-Eligible Persons(1) These regulations shall be construed and applied to further the intent of the Legislature to supplement Medicaid funds that are used to provide medical services to eligible persons. Estate recovery shall be accomplished by the Department or its agent filing a statement of claim against the estate or with the closest identifiable surviving family members of a deceased Medicaid Member or any person who has an interest in property of the deceased member. Recovery shall be made pursuant to federal authority in § 13612 of the Omnibus Budget Reconciliation Act of 1993 which amends § 1917(b)(1) of the Social Security Act, 42 U.S.C. 1396p(b)(1). (2) Adjustment or recovery for all medical assistance and/or services pursuant to the State Plan will be from Medicaid Members:(a) Who, at the time of death, were any age and an inpatient in a nursing facility, intermediate care facility for individuals with intellectual disability, or other medical institution if the Member is required, as a condition of receiving services in the facility under the State Plan, to spend for costs of medical care all but a minimal amount of the person's income required for personal needs; or(b) Who, at the time of death, were fifty-five (55) years of age or older when the Member received medical assistance, but only for medical services consisting of nursing facility services, personal care services, home and community based services, and hospital and prescription drug services provided to Members in nursing facilities or receiving home and community based services.(3) The Department shall provide written notice of the Estate Recovery program to Members at the time of application for medical assistance and the Members must sign a written acknowledgement of receipt of such notice. Notice will be given to Members thereafter at the annual redetermination. Members currently receiving medical assistance prior to the Estate Recovery program's effective date set forth in Paragraph (17) of this Rule will be notified at his or her annual redetermination. A notification by the Medicaid Eligibility Systems that the notice was sent and acknowledged by the Member and the Member's personal representative by U.S. mail or electronic means of communication for those who have elected to receive electronic communications to the last known address of the Member or the Member's personal representative shall be deemed to satisfy this notice requirement.(4) The acceptance of public medical assistance, as defined by Title XIX of the Social Security Act, including mandatory and optional supplemental payments under the Social Security Act, shall create a debt to the agency in the amount recoverable under the State Plan. The Department shall be given priority status, upon filing a statement of claim in the estate proceeding if an estate proceeding has been filed. In addition, priority status attaches to the Department's interest regardless whether an estate proceeding has been initiated.(5) The Department may amend the claim as a matter of right until the Member's estate has been closed.(6) The Department's provider processing reports shall be admissible as prima facie evidence in substantiating the agency's claim.(7) Any trust provision that denies recovery for medical assistance is void on and after the time of its making.(8) Adjustment or recovery of debt will be made only after the death of the Member's surviving spouse, if any, and only at a time when the Member has no surviving child who is under the age of twenty-one (21), or a child who is blind or permanently and totally disabled pursuant to the eligibility requirements of Title XIX of the Social Security Act.(9) With respect to a lien placed on the home of a permanently institutionalized Member, the Department will not seek adjustment or recovery of Medical assistance correctly paid on behalf of the Member until the following persons are not residing in the Member's home:(a) A sibling of the Member with an equity interest in the home who was residing in the Member's home for at least one (1) year on a continuous basis immediately before the date that the Member was institutionalized; and(b) A child of the Member who was residing in the Member's home for at least two (2) years on a continuous basis before the date that the Member was institutionalized and who has established to the satisfaction of the Department that he or she provided care that permitted the Member to reside at home rather than to become institutionalized.(10) The sibling or child of the Member must demonstrate that he or she has been lawfully residing in the Member's home on a continuous basis for the periods described in Paragraphs (9)(a) and (b) respectively, since the date of the Member's admission to the medical institution, and must provide the Department with clear and convincing evidence to prove residency which may include, but not be limited to, receipts, mortgage statements, bills, mail forwarded to Member's address, or voter's registration. The sibling or child of the Member must demonstrate that he or she did not reside in any other residence except the Member's home during the periods of time set forth in Paragraphs (9)(a) and (b) respectively. The sibling or child shall maintain the burden of proof in all proceedings.(11) No debt under this section shall be enforced against any property that is determined to be exempt from the claims of creditors under the constitution or laws of this state.(12) The Department may delay or waive recovery from an estate if doing so would cause undue hardship for the qualified Heirs, as defined in Rule 111-3-8-.08. The personal representative of an estate and any Heir may request that the agency waive recovery.(13) The state's right to full reimbursement of the costs of medical assistance shall not be diminished by the recovery of any judgment, settlement, or award of an amount less than the value of the original or settled claim. To enforce its rights, the state may intervene or join in any action or proceeding brought by a claimant against a third party. To aid in the recovery of the cost of medical assistance, the state shall have a first lien in the full amount of the costs of medical assistance against the proceeds from all damages awarded in a suit or settlement.(14) Transfers of real or personal property, on or after the look-back dates defined in 42 U.S.C. § 1396p, by a Member of such aid, or by their spouse, without adequate consideration are voidable and may be set aside by an action in court.(15) Counsel fees, costs, or other expenses shall not reduce any third party recovery obtained by the state incurred by the Member or the Member's attorney.(16) If, after the reported death of the Member, the Department is prohibited from Estate Recovery because of exemption conditions, the Department may postpone recovery until all exemption conditions are no longer present. An estate does not have to be open in order for the Department to execute its claim after all exemption conditions are no longer present. Termination of recovery will occur when all real and personal property included as part of the Member's estate is no longer accessible due to all estate property having been depleted through payment of costs of medical care for the Member and the Member's spouse.(17) The effective date of the Medicaid Estate Recovery Program is May 3, 2006. Adjustment or recovery shall apply to those costs associated with medical assistance and/or services a Member received on or after the effective date.(18) To prevent substantial and unreasonable hardship, the Commissioner shall waive any claim against the first $25,000.00 of any estate subject to an Estate Recovery claim for the deceased Medicaid Member with a date of death on or after July 1, 2018.Ga. Comp. R. & Regs. R. 111-3-8-.04
O.C.G.A. § 49-4-147.1, 42 U.S.C. 1396p.
Original Rule entitled "Recovery for Payments Made on Behalf of Medicaid-Eligible Persons" adopted. F. July 16, 2004; eff. August 5, 2004.Amended: F. Aug. 17, 2004; eff. Sept. 6, 2004.Amended: F. Oct. 19, 2006; eff. Nov. 8, 2006.Amended: F. Mar. 27, 2020; eff. Apr. 16, 2020.