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S1318................................................by JUDICIARY AND RULES ESTATES - MEDICAL ASSISTANCE COSTS - Amends existing law relating to estate property to set forth provisions applicable to the recovery of medical assistance costs by the Department of Health and Welfare; and to revise provisions applicable to the recovery of certain medical assistance. 01/30 Senate intro - 1st rdg - to printing 01/31 Rpt prt - to Jud 02/09 Rpt out - rec d/p - to 2nd rdg 02/10 2nd rdg - to 3rd rdg 02/14 3rd rdg - PASSED - 35-0-0 AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams NAYS -- None Absent and excused -- None Floor Sponsor - Kelly Title apvd - to House 02/15 House intro - 1st rdg - to Jud 03/06 Rpt out - rec d/p - to 2nd rdg 03/07 2nd rdg - to 3rd rdg 03/16 3rd rdg - PASSED - 64-0-6 AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bell, Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon, Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Stevenson, Trail NAYS -- None Absent and excused -- Bedke, Crow, Snodgrass, Wills, Wood, Mr. Speaker Floor Sponsor - Smith(24) Title apvd - to Senate 03/17 To enrol 03/20 Rpt enrol - Pres signed - Sp signed 03/21 To Governor 03/24 Governor signed Session Law Chapter 179 Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE SENATE SENATE BILL NO. 1318 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO ESTATE PROPERTY; AMENDING SECTION 15-3-1201, IDAHO CODE, TO SET 3 FORTH PROVISIONS APPLICABLE TO THE RECOVERY OF MEDICAL ASSISTANCE COSTS BY 4 THE DEPARTMENT OF HEALTH AND WELFARE AND TO MAKE TECHNICAL CORRECTIONS; 5 AMENDING SECTION 56-218, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO 6 THE RECOVERY OF CERTAIN MEDICAL ASSISTANCE; AND AMENDING SECTION 56-218A, 7 IDAHO CODE, TO REVISE A CODE REFERENCE. 8 Be It Enacted by the Legislature of the State of Idaho: 9 SECTION 1. That Section 15-3-1201, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 15-3-1201. COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT. (a) Thirty (30) 12 days after the death of a decedent, any person indebted to the decedent or 13 having possession of tangible personal property or an instrument evidencing a 14 debt, obligation, stock or chose in action belonging to the decedent shall 15 make payment of the indebtedness or deliver the tangible personal property or 16 an instrument evidencing a debt, obligation, stock or chose in action to a 17 person or entity claiming to be the successor of the decedent upon being pre- 18 sented an affidavit made by or on behalf of the successor stating that: 19 (1)tThe fair market value of the entire estate of the decedent which is 20 subject to probate, wherever located, less liens and encumbrances, does 21 not exceed seventy-five thousand dollars ($75,000); 22 (2)tThirty (30) days have elapsed since the death of the decedent; 23 (3)nNo application or petition for the appointment of a personal repre- 24 sentative or for summary administration is pending or has been granted in 25 any jurisdiction; and 26 (4)tThe claiming successor is entitled to payment or delivery of the 27 property, including entitlement as a trust pursuant to a will of the dece- 28 dent. 29 (b) A transfer agent of any security shall change the registered owner- 30 ship on the books of a corporation from the decedent to the successor or suc- 31 cessors upon the presentation of an affidavit as provided in subsection (a) of 32 this section. 33 (c) For the purposes of this section, for the recovery of medical assis- 34 tance, the department of health and welfare shall be deemed a successor to the 35 estate provided: 36 (1) Prior to the presentation of the affidavit, the department shall give 37 notice, by regular mail, to any person known to the department to be an 38 heir, successor or creditor of the estate, and the department shall cer- 39 tify such notice in writing to the person described in subsection (a) of 40 this section. 41 (2) Within sixty (60) days of mailing the notice, any person who claims 42 the right to reimbursement for priority estate expenses, as permitted by 43 section 15-3-805(a)(1) through (4), Idaho Code, may submit a written 2 1 demand for payment of such expenses, together with any documentation of 2 the expenses, to the department. Upon receipt of the funds, and up to the 3 amount received, the department shall pay priority claims which it deter- 4 mines would be allowed in a probate proceeding, if any. The department 5 shall notify each claimant of the disposition of his claim. The provisions 6 of chapter 52, title 67, Idaho Code, shall apply to determinations made by 7 the department under this section. 8 SECTION 2. That Section 56-218, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 56-218. RECOVERY OF CERTAIN MEDICAL ASSISTANCE. (1) Except where exempted 11 or waived in accordance with federal law medical assistance pursuant to this 12 chapter paid on behalf of an individual who was fifty-five (55) years of age 13 or older when the individual received such assistance may be recovered from 14 the individual's estate, and the estate of the spouse, if any, for such aid 15 paid to either or both; provided, however, that claim for such medical assis-16tance correctly paid to the individual may be established against the estate17of either spouse, but: 18 (a) Tthere shall be no adjustment or recoverythereofuntil after the 19 death of both the individual and the spouse, if any, and only at a time 20 when the individual has no surviving child who is under twenty-one (21) 21 years of age or is blind or permanently and totally disabled as defined in 22 42 U.S.C. 1382c. 23 (b) While one (1) spouse survives, except where joint probate will be 24 authorized pursuant to section 15-3-111, Idaho Code, a claim for recovery 25 under this section may be established in the estate of the deceased 26 spouse. 27 (c) The claim against the estate of the first deceased spouse must be 28 made within the time provided by section 15-3-801(b), Idaho Code, if the 29 estate is administered and actual notice is given to the director as 30 required by subsection (5) of this section. However, if there is no admin- 31 istration of the estate of the first deceased spouse, or if no actual 32 notice is given to the director as required by subsection (5) of this sec- 33 tion, no claim shall be required until the time provided for creditor 34 claims in the estate of the survivor. 35 (d) Nothing in this section authorizes the recovery of the amount of any 36 aid from the estate or surviving spouse of a recipient to the extent that 37 the need for aid resulted from a crime committed against the recipient. 38 (2) Transfers of real or personal property, on or after the look-back 39 dates defined in 42 U.S.C. 1396p, by recipients of such aid, or their spouses, 40 without adequate consideration are voidable and may be set aside by an action 41 in the district court. 42 (23) Except where there is a surviving spouse, or a surviving child who 43 is under twenty-one (21) years of age or is blind or permanently and totally 44 disabled as defined in 42 U.S.C. 1382c, the amount of any medical assistance 45 paid under this chapter on behalf of an individual who was fifty-five (55) 46 years of age or older when the individual received such assistance is a claim 47 against the estate in any guardianship or conservatorship proceedings and may 48 be paid from the estate. 49(3) Nothing in this section authorizes the recovery of the amount of any50aid from the estate or surviving spouse of a recipient to the extent that the51need for aid resulted from a crime committed against the recipient.52 (4) For purposes of this section, the term "estate" shall include: 53 (a) All real and personal property and other assets included within 3 1 the individual's estate, as defined for purposes of state probate 2 law; and 3 (b) Any other real and personal property and other assets in which 4 the individual had any legal title or interest at the time of death 5 (to the extent of such interest), including such assets conveyed to a 6 survivor, heir, or assign of the deceased individual through joint 7 tenancy, tenancy in common, survivorship, life estate, living trust 8 or other arrangement. 9 (5) Claims made pursuant to this section shall be classified and paid as 10 a debt with preference as defined in section 15-3-805(5), Idaho Code. Any dis- 11 tribution or transfer of the estate prior to satisfying such claim is voidable 12 and may be set aside by an action in the district court. The personal repre- 13 sentative of every estate subject to a claim under this section must, within 14 thirty (30) days of the appointment, give notice in writing to the director of 15 his or her appointment to administer the estate. However, if an exempt prop- 16 erty allowance claim is made in an estate subject to a claim under this sec- 17 tion by one (1) or more persons not described in subsection (2) of this sec- 18 tion, then, to the extent such exempt property allowance claim exceeds the 19 fair market value of the actual personal property of the decedent held by the 20 estate subject to a claim under this section (including, but not limited to, 21 such items as household furniture, automobiles, furnishings, appliances, and 22 personal effects), the persons making such exempt property allowance claim 23 must file with the court, and with the personal representative or administra- 24 tor of the estate, and with the department, a written statement under oath 25 containing the following: 26 (a) A statement that no personal property of the decedent has been trans- 27 ferred without adequate consideration to any person or entity, including 28 any one (1) or more of the persons making the exempt property allowance 29 claim, to the actual knowledge of any of the persons making the exempt 30 property allowance claim, within a time period commencing one (1) year 31 prior to the death of the decedent and ending on the date of the state- 32 ment; or 33 (b) A statement that personal property of the decedent has been trans- 34 ferred without adequate consideration to any person or entity, including 35 one (1) or more of the persons making the exempt property allowance claim, 36 within a time period commencing one (1) year prior to the death of the 37 decedent and ending on the date of the statement, to the actual knowledge 38 of any of the persons making the exempt property allowance claim, and 39 stating the fair market value of the personal property so transferred, and 40 stating a reasonable description of such property, and stating the method 41 of determining the fair market value of the personal property so trans- 42 ferred. 43 If the written statement indicates that there has been such a transfer of per- 44 sonal property, then the fair market value of the personal property so trans- 45 ferred shall be subtracted from the remaining exempt property allowance claim, 46 after subtraction of the personal property held by the estate, as described 47 above, and only any still remaining portion of the exempt property claim may 48 be paid by the estate to the persons making the exempt property allowance 49 claim. The statement submitted under paragraph (a) or (b) of this subsection, 50 must be signed under oath by all persons making the exempt property claim. 51 (6) The department may file a notice of lien against the property of any 52 estate subject to a claim under this section. 53 (a) In order to perfect a lien against real or personal property, the 54 department shall, within ninety (90) days after the personal representa- 55 tive or successor makes a written request for prompt action to the direc- 4 1 tor, or three (3) years from the death of theindividual for whom medical2assistance was paid under this chapterdecedent, whichever is sooner, file 3 a notice of lien in the same general form and manner as provided in sec- 4 tion 56-218A(3)(a), Idaho Code, in the office of the secretary of state, 5 pursuant to section 45-1904, Idaho Code. Failure to file a notice of lien 6 does not affect the validity of claims made pursuant to this section. 7 (b) The department may release the lien in whole or in part to permit the 8 estate property to be administered by a court-appointed personal represen- 9 tative. 10 (c) The department may foreclose its lien, without probate, in any of the 11 following circumstances: 12 (i) Where no personal representative has been appointed after one 13 (1) year from the date of death of the survivor of both the individ- 14 ual and spouse, if any; 15 (ii) Where the property has been abandoned by the decedent's heirs 16 or successors, if any; 17 (iii) Where the real property taxes that are due and payable have 18 remained unpaid for two (2) years and, after demand by the depart- 19 ment, the heirs or successors, if any, have failed to seek appoint- 20 ment or pay the property taxes; or 21 (iv) Where all parties interested in the estate consent to foreclo- 22 sure of the lien. 23 (7) The director shall promulgate rules reasonably necessary to implement 24 this section including, but not limited to, rules establishing undue hardship 25 waivers for the following circumstances: 26 (a) Theonly asset of theestate subject to recovery is income-producing 27 property that provides the primary source of support for other family mem- 28 bers; or 29 (b) The estate has a value below an amount specified in the rules; or 30 (c) Recoveryunder the lienby the department willentitlecause the 31 heirs of the deceased individual to be eligible for public assistance. 32 (8) The cause of action to void a transfer without adequate consideration 33 established in this section shall not be deemed to have accrued until the 34 department discovers, or reasonably could have discovered, the facts consti- 35 tuting the transfer without adequate consideration. 36 SECTION 3. That Section 56-218A, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 56-218A. MEDICAL ASSISTANCE LIENS DURING LIFE OF RECIPIENT. (1) The 39 department may recover and may impose a lien against the real property of any 40 individual prior to his death for medical assistance paid or about to be paid 41 under this chapter on behalf of an individual: 42 (a) Who is an inpatient in a nursing facility, intermediate care facility 43 for the mentally retarded, or other medical institution, if such individ- 44 ual is required, as a condition of receiving services in such institution 45 under the state plan, to spend for costs of medical care all but a minimal 46 amount of his income required for personal needs; and 47 (b) With respect to whom the department has determined, after notice and 48 opportunity for hearing, that he cannot reasonably be expected to be dis- 49 charged from the medical institution and to return home. 50 (2) No lien may be imposed on the home of an individual under subsection 51 (1) of this section if any of the following is lawfully residing in such home: 52 (a) The spouse of such individual; 53 (b) Such individual's child under age twenty-one (21) years; 5 1 (c) Such individual's child who is blind or permanently and totally dis- 2 abled as defined in 42 U.S.C. 1382c; or 3 (d) A sibling of such individual who holds an equity interest in such 4 home and who was residing in such home for a period of at least one (1) 5 year prior to the individual's admission to the medical institution. 6 (3) (a) The lien shall be perfected by filing in the office of the secre- 7 tary of state a notice of lien pursuant to section 45-1904, Idaho Code. 8 The notice of lien shall include, in addition to the information required 9 by section 45-1904, Idaho Code, the amount paid or about to be paid by the 10 department on behalf of the individual, and, if applicable, the fact that 11 the amount of the lien may increase over time. 12 (b) The department shall file any notice of lien under this section 13 within ninety (90) days of the final determination of the department, 14 after hearing if any, required in subsection (1)(b) of this section, with 15 the exception of property against which the department is prevented from 16 filing a lien pursuant to subsection (2) of this section. With respect to 17 the property described in subsection (2) of this section, the department 18 shall file a notice of lien within ninety (90) days after the department 19 is notified in writing that subsection (2) of this section ceases to apply 20 to the property. 21 (4) Any lien imposed in accordance with subsection (1) of this section 22 shall dissolve upon the individual's discharge from the medical institution 23 and return home. 24 (5) No recovery shall be made under this section for medical assistance 25 correctly paid except from such individual's estate as defined in subsection 26 (4) of section 56-218, Idaho Code, and subject to subsections (31)(d), (5) and 27 (6) of section 56-218, Idaho Code, or upon sale of the property subject to a 28 lien and may be made only after the death of such individual's surviving 29 spouse, if any, and only at a time: 30 (a) When he has no surviving child who is under age twenty-one (21) 31 years, or who is blind or permanently and totally disabled as defined in 32 42 U.S.C. 1382c; or 33 (b) In the case of a lien on an individual's home under subsection (1) of 34 this section, when none of the following is lawfully residing in such home 35 who has lawfully resided in such home on a continuous basis since the date 36 of the individual's admission to the medical institution: 37 (i) A sibling of the individual, who was residing in the 38 individual's home for a period of at least one (1) year immediately 39 before the date of the individual's admission to the medical institu- 40 tion; or 41 (ii) A son or daughter of the individual, who was residing in the 42 individual's home for a period of at least two (2) years immediately 43 before the date of the individual's admission to the medical institu- 44 tion and who establishes to the satisfaction of the state that he or 45 she provided care to such individual which permitted such individual 46 to reside at home rather than in an institution. 47 (6) The director shall promulgate rules reasonably necessary to implement 48 this section including, but not limited to, rules establishing undue hardship 49 waivers, as provided in section 56-218(7), Idaho Code, and a procedure for 50 notice and opportunity for hearing on the department's determination that an 51 individual cannot reasonably be expected to be discharged from a medical 52 institution and to return home.
STATEMENT OF PURPOSE RS 15741 This bill clarifies how the Medicaid Estate Recovery division of Health & Welfare can recover assets from the estate of a decedent and clears up a number of uncertain areas of law. Section One covers the Small Estate Affidavit, which allows a "successor" of the decedent to obtain personal property assets held by third parties (bank accounts, stocks, etc.) by use of an affidavit, within the limits set forth in the statute. This bill allows the Department of Health & Welfare to be a successor if: 1. The Department has a claim for estate recovery against the decedent; 2. the Department gives notice, by regular mail, to any person known to the department to be an heir, successor, or creditor of the estate, and the department certifies that notice in writing to the person described in paragraph (a) of the section, the normal successor; and, 3. The Department reimburses all priority claims under the probate code which are presented within sixty days after the notice. Use of this procedure is far less expensive than filing a full probate proceeding. Section Two amends Idaho Code 56-218 to clarify the presentation and collection of estate recovery claims by Health & Welfare. A number of clarifications are made by repositioning language or stating the existing concept more clearly. Under existing law, if the institutionalized spouse, who received Medicaid, dies leaving a surviving spouse, no actual collection is made, but a "claim" must be sent to the personal representative of the estate of deceased institutionalized spouse, or if no probate is done, to the surviving spouse. This can be very frightening to the surviving spouse, who often does not understand that no current reimbursement is being demanded. Therefor, the bill both clarifies that no recovery is made until both spouses are deceased and also removes the requirement to send a claim if no probate is filed at the first death. The bill also clarifies how the lien filed by the Department with the Secretary of State may be released, in order to allow sale of the property by the estate, or foreclosed, to expedite estate recovery when the real estate has been abandoned or has real property taxes overdue which may be foreclosed upon or where no probate has been filed and all heirs agree to the procedure as an alternative to probate. Section Three only corrects a cross-reference. FISCAL NOTE This bill will have no fiscal impact, except that it may reduce the costs of estate recovery to the Department of Health & Welfare. Contact Name: Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc. Phone: 208-336-9880 Cell: 208-631-2481 STATEMENT OF PURPOSE/FISCAL NOTE S 1318