2017 Nebraska Revised Statutes
Chapter 68 - PUBLIC ASSISTANCE
68-919 Medical assistance recipient; liability; when; claim; procedure; department; powers; recovery of medical assistance reimbursement; procedure.

68-919. Medical assistance recipient; liability; when; claim; procedure; department; powers; recovery of medical assistance reimbursement; procedure.

(1) The recipient of medical assistance under the medical assistance program shall be indebted to the department for the total amount paid for medical assistance on behalf of the recipient if:

(a) The recipient was fifty-five years of age or older at the time the medical assistance was provided; or

(b) The recipient resided in a medical institution and, at the time of institutionalization or application for medical assistance, whichever is later, the department determines that the recipient could not have reasonably been expected to be discharged and resume living at home. For purposes of this section, medical institution means a nursing facility, an intermediate care facility for persons with developmental disabilities, or an inpatient hospital.

(2) The debt accruing under subsection (1) of this section arises during the life of the recipient but shall be held in abeyance until the death of the recipient. Any such debt to the department that exists when the recipient dies shall be recovered only after the death of the recipient's spouse, if any, and only after the recipient is not survived by a child who either is under twenty-one years of age or is blind or totally and permanently disabled as defined by the Supplemental Security Income criteria. In recovering such debt, the department shall not foreclose on a lien on the home of the recipient (a) if a sibling of the recipient with an equity interest in the home has lawfully resided in the home for at least one year before the recipient's admission and has lived there continuously since the date of the recipient's admission or (b) while the home is the residence of an adult child who has lived in the recipient's home for at least two years immediately before the recipient was institutionalized, has lived there continuously since that time, and can establish to the satisfaction of the department that he or she provided care that delayed the recipient's admission.

(3) The debt shall include the total amount of medical assistance provided when the recipient was fifty-five years of age or older or during a period of institutionalization as described in subsection (1) of this section and shall not include interest.

(4)(a) This subsection applies to the fullest extent permitted by 42 U.S.C. 1396p, as such section existed on January 1, 2017. It is the intent of the Legislature that the debt specified in subsection (1) of this section be collected by the department before any portion of the estate of a recipient of medical assistance is enjoyed by or transferred to a person not specified in subsection (2) of this section as a result of the death of such recipient. The debt may be recovered from the estate of a recipient of medical assistance.

(b) For purposes of this section:

(i) Estate of a recipient of medical assistance means any real estate, personal property, or other asset in which the recipient had any legal title or interest at the time of the recipient's death, to the extent of such interests. In furtherance and not in limitation of the foregoing, the estate of a recipient of medical assistance also includes:

(A) Assets to be transferred to a beneficiary described in section 77-2004 or 77-2005 in relation to the recipient through a revocable trust or other similar arrangement which has become irrevocable by reason of the recipient's death; and

(B) Notwithstanding anything to the contrary in subdivision (3) or (4) of section 68-923, assets conveyed or otherwise transferred to a survivor, an heir, an assignee, a beneficiary, or a devisee of the recipient of medical assistance through joint tenancy, tenancy in common, transfer on death deed, survivorship, conveyance of a remainder interest, retention of a life estate or of an estate for a period of time, living trust, or other arrangement by which value or possession is transferred to or realized by the beneficiary of the conveyance or transfer at or as a result of the recipient’s death to the full extent authorized in 42 U.S.C. 1396p(b)(4)(B). Such other arrangements include insurance policies or annuities in which the recipient of medical assistance had at the time of death any incidents of ownership of the policy or annuity or the power to designate beneficiaries and any pension rights or completed retirement plans or accounts of the recipient. A completed retirement plan or account is one which because of the death of the recipient of medical assistance ceases to have elements of retirement relating to such recipient and under which one or more beneficiaries exist after such recipient’s death; and

(ii) Estate of a recipient of medical assistance does not include:

(A) Insurance policies in proportion to the premiums and other payments to the insurance carrier that were paid by someone other than the recipient of medical assistance or the recipient’s spouse;

(B) Insurance proceeds and accounts in institutions under federal supervision or supervision of the Department of Banking and Finance or Department of Insurance to the extent subject to a security interest where the secured party is not a related transferee as defined in section 68-990;

(C) Insurance proceeds, any trust account subject to the Burial Pre-Need Sale Act, or any limited lines funeral insurance policy to the extent used to pay for funeral, burial, or cremation expenses of the recipient of medical assistance;

(D) Conveyances of real estate made prior to August 24, 2017, that are subject to the grantor's retention of a life estate or an estate for a period of time; and

(E) Any pension rights or completed retirement plans to the extent that such rights or plans are exempt from claims for reimbursement of medical assistance under federal law.

(c) As to any interest in property created after August 24, 2017, and for as long as any portion of the debt arising under subsection (1) of this section remains unpaid, the death of the recipient of medical assistance shall not trigger a change in the rights to possession, enjoyment, access, income, or otherwise that the recipient had at the time of death and the personal representative of the recipient's estate is empowered to and shall exercise or enjoy such rights for the purpose of paying such debt, including, but not limited to, renting such property held as a life estate, severing joint tenancies, bringing partition actions, claiming equitable rights of contribution, or taking other actions otherwise appropriate to effect the intent of this section. Such rights shall survive the death of the recipient of medical assistance and shall be administered, marshaled, and disposed of for the purposes of this section. In the event that a claim for reimbursement is made as to some, but not all, nonprobate transferees or assets, the party or owner against whom the claim is asserted may seek equitable contribution toward the claim from the other nonprobate transferees or assets in a court of applicable jurisdiction. Except as otherwise provided in this section and except for the right of the department to recover the debt from such interests in property, this subsection in and of itself does not create any rights in any other person or entity.

(d) Unless includable in the estate of a recipient of medical assistance pursuant to this section as it existed prior to August 24, 2017, an interest in real estate transferred to a related transferee as defined in section 68-990 and vested in such related transferee prior to August 24, 2017, shall not be part of the estate of the recipient of medical assistance unless required disclosures were not made at the time of application for medical assistance under section 68-989 or at the time of any review by the department of the recipient’s eligibility for medical assistance.

(e) The department, upon application of the personal representative of an estate, any person otherwise authorized under the Nebraska Probate Code to act on behalf of a decedent, any person having an interest in assets of the decedent which are subject to this subsection, a successor trustee of a revocable trust or other similar arrangement which has become irrevocable by reason of the decedent’s death, or any other person holding assets of the decedent described in this subsection, shall release some or all of the property of a decedent from the provisions of this subsection in cases in which the department determines that either there is no medical assistance reimbursement due and no application for medical assistance has been filed on behalf of the decedent or that there will be sufficient assets of the probate estate of the decedent to satisfy all such claims for medical assistance reimbursement. If there is no medical assistance reimbursement due and no application for medical assistance has been filed on behalf of the decedent, the department shall certify to the applicant that no reimbursement is due as expeditiously as reasonably possible but in no event more than sixty days after receipt of the application, the decedent’s name and social security number, and, if the decedent was predeceased by a spouse, the name and social security number of such spouse. Failure of the department to timely make such certification shall subject the department to payment of the applicant's reasonable attorney's fees and costs in an action for mandamus filed in either Lancaster County or the county in which the probate action or inheritance tax proceeding is pending. The department shall annually report to the Legislature the amount and circumstances of such attorney's fees and costs paid. If the department determines that there is medical assistance reimbursement due or that an application for medical assistance has been filed on behalf of the decedent, the department shall mail notice thereof to the applicant within such sixty-day period. Notice stating that a demand for notice has been filed pursuant to subsection (3) of section 71-605 shall suffice for purposes of the notice requirement. Failure of the department to provide the required notice discharges the debt created under this section unless the department has previously filed a demand for notice under subsection (3) of section 71-605. An application under this subdivision shall be provided to the department in a delivery manner and at an address designated by the department, which manner may include email. The department shall post the acceptable manner of delivery on its web site. Any application that fails to conform with such manner is void. The department shall not require, as part of the application, that an applicant submit information beyond what is needed to implement this subdivision. Notwithstanding the lack of an order by a court designating a trustee or successor trustee of a revocable trust or other similar arrangement which has become irrevocable by reason of the decedent's death as a person who may receive information in conjunction with applicable privacy law, such person shall have the authority of a personal representative with respect to the trust assets, including, but not limited to, the authority to seek and to obtain from the department information protected by applicable privacy law, and the department shall release the information requested to the trustee to the extent it is relevant to resolving issues relating to reimbursement of medical assistance or the administration thereof.

(f) In the event that the department does not seek to recover medical assistance reimbursement for a period of eighteen months after it is entitled to do so, the county attorney of the county in which the recipient of medical assistance last resided, or in the case of real estate, the county where the real estate is located, may seek the consent of the department to enforce the rights of the department. The department shall determine whether or not to grant such consent within sixty days after the consent is requested. If the department fails to make a determination within the sixty-day period, such consent shall be deemed to have been granted. The department may not unreasonably withhold consent to the bringing of such action. If the county attorney brings such an action, the county shall be entitled to such reasonable attorney's fees as determined by the court with jurisdiction of the action. The department shall give its full cooperation to such county attorney.

(g) An action for recovery of the debt created under subsection (1) of this section may be brought by the department against the estate of a recipient of medical assistance as defined in subdivision (4)(b) of this section at any time before five years after the last of the following events:

(i) The death of the recipient of medical assistance;

(ii) The death of the recipient’s spouse, if applicable;

(iii) The attainment of the age of twenty-one years by the youngest of the recipient’s minor children, if applicable; or

(iv) A determination that any adult child of the recipient is no longer blind or totally and permanently disabled as defined by the Supplemental Security Income criteria, if applicable.

(5) In any probate proceedings in which the department has filed a claim under this section, no additional evidence of foundation shall be required for the admission of the department's payment record supporting its claim if the payment record bears the seal of the department, is certified as a true copy, and bears the signature of an authorized representative of the department.

(6) The department may waive or compromise its claim, in whole or in part, if the department determines that enforcement of the claim would not be in the best interests of the state or would result in undue hardship as provided in rules and regulations of the department.

(7) Whenever the department has provided medical assistance because of sickness or injury to any person resulting from a third party’s wrongful act or negligence and the person has recovered or may recover damages from such third party, to the fullest extent permitted by federal law and understandings entered into between the state and federal government, the department shall have the right to recover the medical assistance it paid from any amounts that the person has received or may receive from or on behalf of the third party. When, with the consent of the department, an action or claim is brought by the person alone and the person incurs or will incur a personal liability to pay attorney’s fees and costs of litigation or costs incurred in pursuit of a claim, to the fullest extent permitted by federal law and understandings entered into between the state and federal government, the department’s claim for reimbursement of the medical assistance provided to the person shall be reduced by twenty-five percent of the full amount of the judgment, award, or settlement, which the person may retain, though otherwise subject to applicable law including but not limited to eligibility criteria, and a pro rata share that represents the department’s reasonable share of attorney’s fees paid by the person and that portion of the costs of litigation or the costs incurred in pursuit of a claim determined by multiplying the amount of the costs of litigation or the costs incurred in pursuit of a claim by the ratio of the full amount of benefit expenditures made by the department to or on behalf of the person to the full amount of the judgment, award, or settlement. The department may not unreasonably withhold consent to the bringing of such action or claim. The department shall determine whether or not to grant such consent within thirty days after the consent is requested. If the department fails to make a determination within the thirty-day period, such consent shall be deemed to have been granted.

(8) The department may adopt and promulgate rules and regulations to carry out this section.

Source

• Laws 1994, LB 1224, § 39;
• Laws 1996, LB 1044, § 334;
• Laws 2001, LB 257, § 1;
• Laws 2004, LB 1005, § 7;
• R.S.Supp.,2004, § 68-1036.02;
• Laws 2006, LB 1248, § 19;
• Laws 2007, LB185, § 2;
• Laws 2013, LB23, § 13;
• Laws 2015, LB72, § 4;
• Laws 2017, LB268, § 14.
• Effective Date: August 24, 2017

Cross References

• Burial Pre-Need Sale Act, see section 12-1101.
• Nebraska Probate Code, see section 30-2201.

Annotations

• The Department of Health and Human Services was entitled to summary judgment on its Medicaid estate recovery claim made pursuant to this section, where uncontroverted evidence showed that the decedent was 55 years of age or older when medical assistance benefits were provided, and was not survived by a spouse, a child under the age of 21, or a child who was blind or totally and permanently disabled, and where the department offered properly authenticated payment records as prescribed by subsection (4) of this section. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

• Time limitations set forth in section 30-2485(a) applied to the Department of Health and Human Services' Medicaid estate recovery claim, because under this section, under which the claim was made, the indebtedness to the department arose during the lifetime of the recipient. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

• The plain and unambiguous language of this section provides that reimbursement claims for medical expenses arise at or after the death of the recipient. In re Estate of Tvrz, 260 Neb. 991, 620 N.W.2d 757 (2001).

• Subsection (4) of this section clearly dispenses with foundation for the admission of the record, if properly certified. In re Estate of Reimers, 16 Neb. App. 610, 746 N.W.2d 724 (2008).

• This section does not create any presumption that the amounts shown on the payment record of the Department of Health and Human Services are reimbursable by the recipient's estate—such must still be proved—and if the exhibit does not do so, then additional evidence is needed. In re Estate of Reimers, 16 Neb. App. 610, 746 N.W.2d 724 (2008).

• A claim by the Department of Health and Human Services Finance and Support for reimbursement of medical assistance benefits pursuant to this section is one that necessarily falls within the provisions of subsection (b) of section 30-2485 as arising "at or after" the death of the decedent who is a recipient of those benefits. In re Estate of Tvrz, 9 Neb. App. 98, 608 N.W.2d 226 (2000).