2005 Legislation
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SENATE BILL NO. 1088 – Medical assistnce, recovery, estate


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Bill Status

S1088.................................................by HEALTH AND WELFARE
MEDICAL ASSISTANCE - Amends existing law relating to the recovery of
certain medical assistance from the estate of deceased recipients to limit
distribution of the estate except under certain conditions.
02/03    Senate intro - 1st rdg - to printing
02/04    Rpt prt - to Jud

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                       IN THE SENATE
                                    SENATE BILL NO. 1088
                              BY HEALTH AND WELFARE COMMITTEE
  1                                        AN ACT
  4        SPECIFIED.
  5    Be It Enacted by the Legislature of the State of Idaho:
  6        SECTION 1.  That Section 56-218, Idaho Code, be, and the  same  is  hereby
  7    amended to read as follows:
  8        56-218.  RECOVERY OF CERTAIN MEDICAL ASSISTANCE. (1) Except where exempted
  9    or  waived  in accordance with federal law medical assistance pursuant to this
 10    chapter paid on behalf of an individual who was fifty-five (55) years  of  age
 11    or  older  when  the individual received such assistance may be recovered from
 12    the individual's estate, and the estate of the spouse, if any,  for  such  aid
 13    paid  to either or both; provided, however, that claim for such medical assis-
 14    tance correctly paid to the individual may be established against  the  estate
 15    of  either  spouse, but there shall be no adjustment or recovery thereof until
 16    after the death of the spouse, if any, and only at a time when the  individual
 17    has  no  surviving child who is under twenty-one (21) years of age or is blind
 18    or permanently and totally disabled as defined in 42 U.S.C. 1382c. No  distri-
 19    bution  of  the  estate  of either spouse may be made, except to the surviving
 20    spouse, or surviving child who is under twenty-one (21) years  of  age  or  is
 21    blind or permanently and totally disabled as defined in 42 U.S.C. 1382c, until
 22    recovery  has  been  made. Transfers of real or personal property, on or after
 23    the look-back dates defined in 42 U.S.C. 1396p, by recipients of such aid,  or
 24    their  spouses,  without  adequate  consideration  are voidable and may be set
 25    aside by an action in the district court.
 26        (2)  Except where there is a surviving spouse, or a surviving child who is
 27    under twenty-one (21) years of age or is blind or permanently and totally dis-
 28    abled as defined in 42 U.S.C. 1382c, the amount of any medical assistance paid
 29    under this chapter on behalf of an individual who was fifty-five (55) years of
 30    age or older when the individual received such assistance is a  claim  against
 31    the  estate in any guardianship or conservatorship proceedings and may be paid
 32    from the estate.
 33        (3)  Nothing in this section authorizes the recovery of the amount of  any
 34    aid  from the estate or surviving spouse of a recipient to the extent that the
 35    need for aid resulted from a crime committed against the recipient.
 36        (4)  For purposes of this section, the term "estate" shall include:
 37        (a)  All real and personal property and other assets included  within  the
 38        individual's estate, as defined for purposes of state probate law; and
 39        (b)  Any  other  real  and personal property and other assets in which the
 40        individual had any legal title or interest at the time of  death  (to  the
 41        extent  of  such  interest), including such assets conveyed to a survivor,
 42        heir, or assign of the deceased individual through joint tenancy,  tenancy
 43        in common, survivorship, life estate, living trust or other arrangement.
  1        (5)  Claims  made pursuant to this section shall be classified and paid as
  2    a debt with preference as defined in section 15-3-805(5), Idaho Code. Any dis-
  3    tribution or transfer of the estate prior to satisfying such claim is voidable
  4    and may be set aside by an action in the district court. The  personal  repre-
  5    sentative  of  every estate subject to a claim under this section must, within
  6    thirty (30) days of the appointment, give notice in writing  to  the  director
  7    of his or her appointment to administer the estate.
  8        (6)  The  department may file a notice of lien against the property of any
  9    estate subject to a claim under this section.  In  order  to  perfect  a  lien
 10    against  real  or  personal property, the department shall, within ninety (90)
 11    days after the personal representative or successor makes  a  written  request
 12    for  prompt  action  to  the  director, or two (2) years from the death of the
 13    individual for whom medical assistance was paid under this chapter,  whichever
 14    is  sooner,  file a notice of lien in the same general form and manner as pro-
 15    vided in section 56-218A(3)(a), Idaho Code, in the office of the secretary  of
 16    state,  pursuant  to  section 45-1904, Idaho Code. Failure to file a notice of
 17    lien does not affect the validity of claims made pursuant to this section.
 18        (7)  The director shall promulgate rules reasonably necessary to implement
 19    this section including, but not limited to, rules establishing undue  hardship
 20    waivers for the following circumstances:
 21        (a)  The  only  asset of the estate provides the primary source of support
 22        for other family members; or
 23        (b)  The estate has a value below an amount specified in the rules; or
 24        (c)  Recovery under the lien by the department will entitle the  heirs  of
 25        the deceased individual to public assistance.
 26        (8)  The cause of action to void a transfer without adequate consideration
 27    established  in  this  section  shall  not be deemed to have accrued until the
 28    department discovers, or reasonably could have discovered, the  facts  consti-
 29    tuting the transfer without adequate consideration.

Statement of Purpose / Fiscal Impact

                    STATEMENT OF PURPOSE

                          RS 14491

Idaho Code Section 56 218 provides for the recovery of medical 
assistance (Medicaid) payments made after the recipient reaches 
age 55, from the probate estate of the Medicaid recipient and 
the recipient's spouse.  Recovery is made only after the death 
of both spouses and only when there is no minor or disabled 
child.  Recovery is made through the probate estate process, but 
can be made from all of the couple's assets, including those 
assets otherwise passing outside probate through trusts, life 
estates, and similar arrangements.  When one spouse needs 
Medicaid, the other spouse is allowed to keep most or all of the 
couple's assets to provide for his or her own support.  
Sometimes, after the death of one spouse, the family will 
attempt to probate the estate and pass the couple’s property to 
heirs other than the surviving spouse (usually to the adult 
children).  This has the effect of leaving the surviving spouse 
destitute, often receiving public assistance, and transferring 
the property out of reach of estate recovery.  This change would 
make clear that the couple's property cannot be distributed to 
others, until the needs of the surviving spouse are met and 
repayment of Medicaid is complete.

                          FISCAL NOTE

Estimated positive impact of $250,000.

Name:	Leslie Clement
Agency:	Health and Welfare
Phone:	364-1804

Statement of Purpose/Fiscal Note                    S 1088