Assembly Bill No. 249–Committee on Health and Human Services

(On Behalf of Welfare Division—Child Support Enforcement)

February 16, 1999

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Referred to Committee on Health and Human Services

 

SUMMARY—Amends provisions governing recovery of assets pursuant to Medicaid estate recovery program. (BDR 38-449)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to Medicaid; amending the provisions governing the recovery of assets pursuant to the Medicaid estate recovery program; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. Chapter 422 of NRS is hereby amended by adding thereto

1-2 a new section to read as follows:

1-3 1. The welfare division shall, to the extent that it is not prohibited by

1-4 federal law, recover from a recipient of public assistance, the estate of

1-5 the recipient or a person who signed the application for public assistance

1-6 on behalf of the recipient an amount not to exceed the amount of public

1-7 assistance incorrectly paid to the recipient, if the person who signed the

1-8 application:

1-9 (a) Failed to report any required information to the welfare division

1-10 that the person knew at the time he signed the application; or

1-11 (b) Failed to report to the welfare division within the period allowed

1-12 by the welfare division any required information that the person obtained

1-13 after he filed the application.

1-14 2. A recipient of incorrectly paid public assistance or a person who

1-15 signed the application for public benefits on behalf of the recipient shall

1-16 reimburse the division or appropriate state agency for the value of the

1-17 incorrectly paid public assistance.

2-1 Sec. 2. NRS 422.054 is hereby amended to read as follows:

2-2 422.054 "Undivided estate" means all assets included in the estate of a

2-3 deceased recipient of Medicaid and any other assets in or to which he had

2-4 an interest or legal title [at the time of] immediately before his death, to the

2-5 extent of that interest or title. The term includes , without limitation, assets

2-6 passing by reason of joint tenancy, reserved life estate, survivorship or

2-7 trust, and any of the decedent’s separate property and his interest in

2-8 community property that was transferred to a community spouse pursuant

2-9 to NRS 123.259 or pursuant to an order of a district court under any other

2-10 provision of law.

2-11 Sec. 3. NRS 422.2935 is hereby amended to read as follows:

2-12 422.2935 1. Except as otherwise provided in this section [, the

2-13 welfare division shall,] and to the extent it is not prohibited by federal law

2-14 and when circumstances allow [:

2-15 (a) Recover] , the welfare division shall recover benefits correctly paid

2-16 for Medicaid from:

2-17 [(1)] (a) The undivided estate of the person who received those

2-18 benefits; and

2-19 [(2)] (b) Any recipient of money or property from the undivided

2-20 estate of the person who received those benefits.

2-21 [(b) Recover from the recipient of Medicaid or the person who signed

2-22 the application for Medicaid on behalf of the recipient an amount not to

2-23 exceed the benefits incorrectly paid to the recipient if the person who

2-24 signed the application:

2-25 (1) Failed to report any required information to the welfare division

2-26 which he knew at the time he signed the application; or

2-27 (2) Failed within the period allowed by the welfare division to report

2-28 any required information to the welfare division which he obtained after he

2-29 filed the application.]

2-30 2. The welfare division shall not recover benefits pursuant to

2-31 [paragraph (a) of] subsection 1, except from a person who is neither a

2-32 surviving spouse nor a child, until after the death of the surviving spouse,

2-33 if any, and only at a time when the person who received the benefits has no

2-34 surviving child who is under 21 years of age or is blind or permanently and

2-35 totally disabled.

2-36 3. Except as otherwise provided by federal law, if a transfer of real or

2-37 personal property by a recipient of Medicaid is made for less than fair

2-38 market value, the welfare division may pursue any remedy available

2-39 pursuant to chapter 112 of NRS with respect to the transfer.

2-40 4. The amount of Medicaid paid to or on behalf of a person is a claim

2-41 against the estate in any probate proceeding only at a time when there is no

2-42 surviving spouse or surviving child who is under 21 years of age or is blind

2-43 or permanently and totally disabled.

3-1 5. The administrator may elect not to file a claim against the estate of a

3-2 recipient of Medicaid or his spouse if he determines that the filing of the

3-3 claim will cause an undue hardship for the spouse or other survivors of the

3-4 recipient. The administrator shall adopt regulations defining the

3-5 circumstances that constitute an undue hardship.

3-6 6. Any recovery of money obtained pursuant to this section must be

3-7 applied first to the cost of recovering the money. Any remaining money

3-8 must be divided among the Federal Government, the department and the

3-9 county in the proportion that the amount of assistance each contributed to

3-10 the recipient bears to the total amount of the assistance contributed.

3-11 7. [An action to recover money owed to the department of human

3-12 resources as a result of the payment of benefits for Medicaid must be

3-13 commenced within 6 months after the cause of action accrues. A cause of

3-14 action accrues after all of the following events have occurred:

3-15 (a) The death of the recipient of Medicaid;

3-16 (b) The death of the surviving spouse of the recipient of Medicaid;

3-17 (c) The death of all children of the recipient of Medicaid who are blind

3-18 or permanently and totally disabled as determined in accordance with 42

3-19 U.S.C. § 1382c; and

3-20 (d) The arrival of all other children of the recipient of Medicaid at the

3-21 age of 21 years.] Any money recovered by the welfare division from the

3-22 estate of a recipient pursuant to this section must be paid in cash to the

3-23 extent of:

3-24 (a) The amount of Medicaid paid to or on behalf of the recipient; or

3-25 (b) The value of the remaining assets in the estate,

3-26 whichever is less.

3-27 Sec. 4. NRS 422.29355 is hereby amended to read as follows:

3-28 422.29355 1. The welfare division may, to the extent not prohibited

3-29 by federal law, petition for the imposition of a lien pursuant to the

3-30 provisions of NRS 108.850 against real or personal property of a recipient

3-31 of Medicaid as follows:

3-32 (a) The welfare division may obtain a lien against a recipient’s property,

3-33 both real or personal, before or after his death in the amount of assistance

3-34 paid or to be paid on his behalf if the court determines that assistance was

3-35 incorrectly paid for the recipient.

3-36 (b) The welfare division may seek a lien against the real property of a

3-37 recipient at any age before his death in the amount of assistance paid or to

3-38 be paid for him if he is an inpatient in a nursing facility, intermediate care

3-39 facility for the mentally retarded or other medical institution and the

3-40 welfare division determines, after notice and opportunity for a hearing in

3-41 accordance with its regulations, that he cannot reasonably be expected to

3-42 be discharged and return home.

4-1 2. No lien may be placed on a recipient’s home pursuant to

4-2 paragraph (b) of subsection 1 for assistance correctly paid if:

4-3 (a) His spouse;

4-4 (b) His child who is under 21 years of age or blind or permanently and

4-5 totally disabled as determined in accordance with 42 U.S.C. § 1382c; or

4-6 (c) His brother or sister who is an owner or part owner of the home and

4-7 who was residing in the home for at least 1 year immediately before the

4-8 date the recipient was admitted to the medical institution,

4-9 is lawfully residing in the home.

4-10 3. Upon the death of a recipient the welfare division may seek a lien

4-11 upon his undivided estate as defined in NRS 422.054.

4-12 4. The state welfare administrator shall release a lien pursuant to this

4-13 section:

4-14 (a) Upon notice by the recipient or his representative to the

4-15 administrator that the recipient has been discharged from the medical

4-16 institution and has returned home;

4-17 (b) If the lien was incorrectly determined; or

4-18 (c) Upon satisfaction of the welfare division’s claim.

4-19 Sec. 5. NRS 147.070 is hereby amended to read as follows:

4-20 147.070 1. Every claim for an amount of $250 or more filed with the

4-21 clerk must be supported by the affidavit of the claimant that:

4-22 (a) The amount is justly due (or if the claim is not yet due, that the

4-23 amount is a just demand and will be due on the ..... day of ........).

4-24 (b) No payments have been made thereon which are not credited.

4-25 (c) There are no offsets to the amount demanded to the knowledge of

4-26 the claimant or other affiant.

4-27 2. Every claim filed with the clerk must contain the mailing address of

4-28 the claimant. Any written notice mailed by an executor or administrator to

4-29 the claimant at the address furnished is proper notice.

4-30 3. When the affidavit is made by any other person than the claimant,

4-31 the reasons why it is not made by the claimant must be set forth in the

4-32 affidavit.

4-33 4. The oath may be taken before any person authorized to administer

4-34 oaths.

4-35 5. The amount of interest must be computed and included in the

4-36 statement of the claim and the rate of interest determined.

4-37 6. [The] Except as otherwise provided in subsection 7, the court may,

4-38 in its discretion, for good cause shown, allow a defective claim or affidavit

4-39 to be corrected or amended on application made at any time before the

4-40 filing of the final account.

5-1 7. The court shall allow the welfare division of the department of

5-2 human resources to amend at any time before the filing of the final

5-3 account a claim for the payment of benefits for Medicaid that the

5-4 division identifies after the original claim has been filed.

5-5 Sec. 6. NRS 147.110 is hereby amended to read as follows:

5-6 147.110 1. Within 15 days after the time for filing claims has

5-7 expired, as provided in this chapter, the executor or administrator shall

5-8 examine all claims filed and shall either endorse on each claim his

5-9 allowance or rejection, with the day and the year thereof, or shall file a

5-10 notice of allowance or rejection with the date and the year thereof, and

5-11 such notice of allowance or rejection shall be attached to the claim allowed

5-12 or rejected.

5-13 2. Within 5 days after the 15 days specified in subsection 1, the

5-14 executor or administrator shall present all claims allowed by him to the

5-15 district judge for his approval or rejection.

5-16 3. If an executor or administrator [shall refuse or neglect] refuses or

5-17 neglects to endorse on a claim his allowance or rejection within 15 days, as

5-18 specified in this section, or [shall] does not file a notice of allowance or

5-19 rejection, the claim shall be deemed rejected, but the executor or

5-20 administrator may, nevertheless, allow the claim at any time before the

5-21 filing of the final account.

5-22 4. If a claim is deemed rejected pursuant to subsection 3, the

5-23 executor or administrator must, not more than 10 days after the

5-24 rejection, provide written notice of the rejection by registered mail to all

5-25 affected creditors.

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