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) 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. The department shall undertake all reasonable and cost-effective measures to enforce recovery under the Medical Assistance Act. All persons specified in subsections (2) and (4) of this section shall cooperate with the department in the enforcement of recovery under the act.
(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 or immediately preceding 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. 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) Notwithstanding anything to the contrary in subdivision (4)(b) of this section, estate of a recipient of medical assistance does not include:
(A) 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;
(B) 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;
(C) Life estate interests in real estate after sixty months from the date of recording a deed with retention of a life estate by the recipient of medical assistance; and
(D) 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) The department, upon application of the personal representative of an estate, any person or entity otherwise authorized under the Nebraska Probate Code to act on behalf of a decedent, any person or entity 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 or entity holding assets of the decedent described in this subsection, shall timely certify to the applicant, that as of a designated date, whether medical assistance reimbursement is due or an application for medical assistance was pending that may result in medical assistance reimbursement due. An application for a certificate 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 website. Any application that fails to conform with such manner is void. Notwithstanding the lack of an order by a court designating the applicant as a person or entity who may receive information protected by applicable privacy laws, the applicant shall have the authority of a personal representative for the limited purpose of seeking and obtaining from the department this certification. If, in response to a certification request, the department certifies that reimbursement for medical assistance is due, the department may release some or all of the property of a decedent from the provisions of this subsection.
(d) 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)(a) 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 damages from such third party, the department shall have the right to recover the medical assistance it paid from any amounts that the person has received as follows:
(i) In those cases in which the person is fully compensated by the recovery, the department shall be fully reimbursed subject to its contribution to attorney's fees and costs as provided in subdivision (b) of this subsection; or
(ii) In those cases in which the person is not fully compensated by the recovery, the department shall be reimbursed that portion of the recovery that represents the same proportionate reduction of medical expenses paid that the recovery amount bears to full compensation of the person subject to its contributions to attorney's fees and costs as provided in subdivision (b) of this subsection.
(b) When an action or claim is brought by the person 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, the department's claim for reimbursement of the medical assistance provided to the person shall be reduced by an amount that represents the department's reasonable pro rata share of attorney's fees and costs of litigation or the costs incurred in pursuit of a claim.
(8) The department may adopt and promulgate rules and regulations to carry out this section.
(9) The changes made to this section by Laws 2019, LB593, shall apply retroactively to August 30, 2015.
Source
Cross References
Annotations
The Department of Health and Human Services may recover from a Medicaid recipient's estate sums paid on the recipient's behalf for room and board and other "nonmedical" expenses at nursing facilities. In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
Under the Medical Assistance Act, where a Medicaid recipient is not survived by a spouse or by a child who is either under the age of 21 or blind or totally and permanently disabled and where no undue hardship as provided in the Department of Health and Human Services' rules and regulations would result, the beneficiaries of a recipient's estate are not entitled to an inheritance at the public's expense. In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
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).
Structure Nebraska Revised Statutes
Chapter 68 - Public Assistance
68-114 - Nonresident poor persons; temporary aid; relief when legal residence not determined.
68-115 - Legal settlement, defined; exclusions; minors; termination.
68-128 - Emergency assistance; families with children.
68-129 - Public assistance; computation of available resources; exclusions.
68-130 - Counties; maintain office and service facilities; review by department.
68-131 - Poor person; support by county; when eligible.
68-132 - County board; duties.
68-133 - County; adopt standards; requirements.
68-134 - Standards; review; filing; availability.
68-135 - Standards; hearing and notice.
68-136 - Failure to adopt or review standards; judicial review.
68-137 - Repayment; when required.
68-138 - Assistance; denial; termination; reduction; notice; hearing.
68-139 - Hearing before county board or hearing examiner; when allowed.
68-140 - Hearing; rights of person requesting.
68-142 - Judicial review; procedure.
68-143 - Poor person; where chargeable.
68-144 - Poor person; duties of county where found and county of legal settlement.
68-145 - Poor person; county where found; action to recover costs; when authorized.
68-146 - Nonresident poor person; general assistance; legal settlement verified; assurances.
68-148 - General assistance; not alienable; exception.
68-149 - Reimbursement to county; when; procedure.
68-150 - Application; right of subrogation.
68-151 - Employable recipients; legislative findings.
68-152 - Employable recipients; programs authorized.
68-153 - Employable recipients; terms, defined.
68-154 - Employable recipients; rules and regulations.
68-154.01 - Employable recipient; community service required; exception.
68-154.02 - Employable recipient; community service; costs; paid by county.
68-154.03 - Employable recipient; community service; participation; how construed.
68-155 - Employable recipients; ineligible; when; notice; appeal.
68-216 - Transferred to section 68-1001.02.
68-301 - State Assistance Fund; created; investment.
68-313 - Records and information; use and disclosure; limitations.
68-326 - Transferred to section 68-702.01.
68-328 - Assistance; application; furnish with reasonable promptness.
68-601 - Social security; policy.
68-603 - Agreement with federal government; state agency; approval of Governor.
68-604 - Agreement with federal government; instrumentality jointly created with other state.
68-605 - Contributions by state employees; amount.
68-606 - Contribution by state employees; collection.
68-607 - Contribution by state employees; adjustments.
68-608 - Coverage by political subdivisions; plan; modification; approval by state agency.
68-610 - Coverage by political subdivisions; amount; payment.
68-611 - Coverage by political subdivisions; delinquent payments; penalty; collection.
68-620.01 - Transferred to section 18-1221.
68-622 - Referendum; persons eligible to vote; Governor; powers.
68-623 - Referendum; how conducted.
68-624 - Referendum; completion; certification; notice; contents.
68-625 - Referendum; state agency; prepare plan; modification of state agreement.
68-626 - Referendum; state agency; forms; make available; aid political subdivisions.
68-627 - Referendum; supervision.
68-629 - Referendum; Governor; appointment of agency to conduct; cost; payment.
68-630 - Political subdivisions; delinquency in payment; manner of collection.
68-703.01 - Department of Health and Human Services; federal funds; expenditures; authorized.
68-716 - Department of Health and Human Services; medical assistance; right of subrogation.
68-719 - Certain vendor payments prohibited.
68-901 - Medical Assistance Act; act, how cited.
68-903 - Medical assistance program; established.
68-904 - Legislative findings.
68-905 - Program of medical assistance; statement of public policy.
68-906 - Medical assistance; state accepts federal provisions.
68-908 - Department; powers and duties.
68-910 - Medical assistance payments; source of funds.
68-912 - Limits on goods and services; considerations; procedure.
68-913 - Medical assistance program; public awareness; public school district; hospital; duties.
68-916 - Medical assistance; application; assignment of rights; exception.
68-917 - Applicant or recipient; failure to cooperate; effect.
68-918 - Restoration of rights; when.
68-920 - Department; garnish employment income; when; limitation.
68-921 - Entitlement of spouse; terms, defined.
68-922 - Amount of entitlement; department; rules and regulations.
68-923 - Assets; eligibility for assistance; future medical support; considerations; subrogation.
68-924 - Designation of assets; procedure.
68-925 - Department; furnish statement.
68-926 - Legislative findings.
68-928 - Licensed insurer or self-funded insurer; provide coverage information.
68-929 - Licensed insurer; violation.
68-930 - Self-funded insurer; violation; civil penalty.
68-931 - Recovery; authorized.
68-932 - Process for resolving violations; appeal.
68-933 - Civil penalties; disposition.
68-934 - False Medicaid Claims Act; act, how cited.
68-938 - Charge, solicitation, acceptance, or receipt; unlawful; when.
68-939 - Records; duties; acts prohibited; liability; costs and attorney's fees.
68-940 - Penalties or damages; considerations; liability; costs and attorney's fees.
68-940.01 - State Medicaid Fraud Control Unit Cash Fund; created; use; investment.
68-941 - Limitation of actions; burden of proof.
68-942 - Investigation and prosecution.
68-943 - State medicaid fraud control unit; certification.
68-944 - State medicaid fraud control unit; powers and duties.
68-945 - Attorney General; powers and duties.
68-946 - Attorney General; access to records.
68-949 - Medical assistance program; legislative intent; department; duties.
68-950 - Medicaid Prescription Drug Act, how cited.
68-954 - Preferred drug list; considerations; availability of list.
68-962 - Autism Treatment Program Act; act, how cited.
68-963 - Purpose of Autism Treatment Program Act.
68-964 - Autism Treatment Program; created; administration; funding.
68-965 - Autism Treatment Program Cash Fund; created; use; investment.
68-966 - Department; apply for medical assistance program waiver or amendment; legislative intent.
68-968 - School-based health centers; School Health Center Advisory Council; members.
68-970 - Nebraska Regional Poison Center; legislative findings.
68-975 - Department; apply for amendment to medicaid state plan; multisystemic therapy for youth.
68-977 - Ground Emergency Medical Transport Act; act, how cited.
68-980 - Supplemental reimbursement.
68-981 - Supplemental reimbursement; eligibility.
68-982 - Supplemental reimbursement; calculation and payment.
68-983 - Intergovernmental transfer program; department; powers and duties.
68-985 - Governmental entity; duties.
68-986 - Department; amendment to medicaid state plan; department; powers.
68-988 - Increased capitation payments; commencement.
68-991 - Medical provider; authority to apply for medical assistance.
68-993 - Medical parole; protocol.
68-995 - Contracts and agreements; department; duties.
68-996 - Medicaid Managed Care Excess Profit Fund; created; use; investment.
68-997 - Job-skills programs; voluntary; departments; powers and duties.
68-998 - Managed care organization; provider contract; material change; notice.
68-999 - Direct care staff; psychiatric facilities caring for juveniles; standards.
68-9,101 - Multiple procedure payment reduction policy; implementation; when prohibited.
68-1001 - Assistance to the aged, blind, or disabled; program; administration.
68-1001.01 - Department of Health and Human Services; rules and regulations; promulgate.
68-1001.02 - Assistance; action for reimbursement; statute of limitations; when commences to run.
68-1002 - Persons eligible for assistance.
68-1003 - Assistance to the aged; additional qualifications required.
68-1004 - Assistance to the blind; additional qualifications required.
68-1006 - Assistance to the aged, blind, or disabled; amount authorized per person; payment.
68-1006.01 - Personal needs allowance; amount authorized.
68-1007 - Determination of need; elements considered; amounts disregarded.
68-1008 - Application for assistance; investigation; notification.
68-1014 - Assistance; payment to guardian or conservator; when authorized.
68-1016 - Assistance; appeals; procedure.
68-1017 - Assistance; violations; penalties.
68-1017.01 - Supplemental Nutrition Assistance Program; violations; penalties.
68-1018 - Transferred to section 68-903.
68-1019 - Transferred to section 68-911.
68-1019.01 - Transferred to section 68-912.
68-1020 - Transferred to section 68-915.
68-1021 - Transferred to section 68-906.
68-1022 - Transferred to section 68-910.
68-1023 - Transferred to section 68-908.
68-1025.01 - Transferred to section 68-913.
68-1026 - Transferred to section 68-916.
68-1027 - Transferred to section 68-917.
68-1028 - Transferred to section 68-918.
68-1036.02 - Transferred to section 68-919.
68-1036.03 - Transferred to section 68-920.
68-1037.01 - Transferred to section 68-1073.
68-1037.02 - Transferred to section 68-1074.
68-1037.03 - Transferred to section 68-1075.
68-1037.04 - Transferred to section 68-1079.
68-1037.05 - Transferred to section 68-1080.
68-1038 - Transferred to section 68-921.
68-1039 - Transferred to section 68-922.
68-1040 - Transferred to section 68-923.
68-1042 - Transferred to section 68-924.
68-1043 - Transferred to section 68-925.
68-1073 - Transferred to section 68-934.
68-1074 - Transferred to section 68-935.
68-1075 - Transferred to section 68-936.
68-1076 - Transferred to section 68-937.
68-1077 - Transferred to section 68-938.
68-1078 - Transferred to section 68-939.
68-1079 - Transferred to section 68-940.
68-1080 - Transferred to section 68-941.
68-1081 - Transferred to section 68-942.
68-1082 - Transferred to section 68-943.
68-1083 - Transferred to section 68-944.
68-1084 - Transferred to section 68-945.
68-1085 - Transferred to section 68-946.
68-1086 - Transferred to section 68-947.
68-10,100 - Transferred to section 68-926.
68-10,101 - Transferred to section 68-927.
68-10,102 - Transferred to section 68-928.
68-10,103 - Transferred to section 68-929.
68-10,104 - Transferred to section 68-930.
68-10,105 - Transferred to section 68-931.
68-10,106 - Transferred to section 68-932.
68-10,107 - Transferred to section 68-933.
68-1103 - Committee; officers; meetings.
68-1105 - Committee; special committees; members; expenses.
68-1106 - Committee; federal funds; grants; gifts; acceptance; disposition.
68-1108 - Department of Health and Human Services; report.
68-1112 - Legislative findings.
68-1113 - Purpose of act; legislative intent.
68-1115 - Funding for aging and disability resource centers.
68-1116 - Aging and disability resource centers; services.
68-1117 - Area agency on aging or partnering organization; powers and duties.
68-1119 - Reimbursement; schedule.
68-1120 - Funding; legislative intent.
68-1201 - Eligibility determination; exclusion of certain assets and income.
68-1202 - Social services; services included.
68-1207.01 - Department of Health and Human Services; caseloads report; contents.
68-1208 - Rules and regulations; right of appeal and hearings.
68-1209 - Applications for social services; information; safeguarded.
68-1211 - Case management of child welfare services; legislative findings and declarations.
68-1214 - Case managers; training program; department; duties; training curriculum; contents.
68-1215 - Low-income home energy assistance program; eligibility; determination.
68-1216 - Low-income home energy assistance program; allocation of funds.
68-1403 - Genetically handicapped persons; medical care program; services and treatment included.
68-1404 - Medical care of genetically handicapping conditions; reimbursement.
68-1406 - Benefits and services; payment liability.
68-1502 - Legislative findings.
68-1504 - Department of Health and Human Services; provide support; expenses; compensation.
68-1505 - Support; families; eligibility requirements.
68-1506 - Support; disabled person in independent living situation; eligibility requirements.
68-1507 - Eligibility; department determine.
68-1508 - Support; allocation of costs; basis.
68-1509 - Department; needs and eligibility criteria; factors.
68-1511 - Department; payment of support; provide assistance; providers of programs and services.
68-1512 - Support; maximum allowance; limitations.
68-1513 - Department; review needs of support recipient.
68-1514 - Denial of support; hearing provided.
68-1515 - Rules and regulations; contents.
68-1516 - Department; provide support; when; priorities.
68-1517 - Department; expenditure of funds authorized.
68-1518 - Department; report; contents.
68-1519 - Obtaining support in violation of sections; violation; penalty.
68-1520 - Legislative findings.
68-1522 - Nebraska Lifespan Respite Services Program; established.
68-1523 - Program; administration.
68-1524 - Program; requirements.
68-1525 - Services; requirements.
68-1526 - Rules and regulations.
68-1529 - Legislative findings and declarations.
68-1531 - Services and support; eligibility.
68-1532 - Family support program; services and support; priorities.
68-1533 - Family support program; implementation; conditions.
68-1534 - Family support program; evaluation.
68-1603 - Department, defined.
68-1604 - Homeless Shelter Assistance Trust Fund; created; use; investment.
68-1605 - Department; grants; requirements; application; considerations.
68-1607 - Recipients; requirements.
68-1608 - Rules and regulations.
68-1709 - Legislative findings and declarations.
68-1711 - Assessment tool; state agencies; utilize.
68-1715 - Rules and regulations.
68-1719 - Self-sufficiency contract; purpose.
68-1720 - Self-sufficiency contract; contents.
68-1721 - Principal wage earner and other nonexempt members of applicant family; duties.
68-1723 - Cash assistance; requirements; extension of time limit; when; hearing; review.
68-1725 - Alternative payment systems authorized.
68-1726 - Assistance under act; eligibility factors.
68-1727 - Family resource centers; legislative intent.
68-1728 - Services for families and children; legislative findings and declarations.
68-1731 - Family services; legislative intent.
68-1732 - Integrated programs and policies; legislative intent.
68-1733 - Planning process; state agencies; duty to establish.
68-1734 - Application process; legislative intent; common assessment tool.
68-1735.02 - Department of Health and Human Services; report; contents.
68-1735.03 - Legislative intent.
68-1738 - Department of Health and Human Services; duty.
68-1803 - Tax; rate; collection; report.
68-1804 - ICF/DD Reimbursement Protection Fund; created; use; allocation; investment; report.
68-1805 - State medicaid plan; application for amendment; tax; when due.
68-1806 - Collection of tax; discontinued; when; effect.
68-1807 - Failure to pay tax; penalty.
68-1809 - Rules and regulations.
68-1902 - Definitions, where found.
68-1903 - Bed-hold day, defined.
68-1904 - Continuing care retirement community, defined.
68-1905 - Department, defined.
68-1906 - Gross inpatient revenue, defined.
68-1908 - Life care contract, defined.
68-1909 - Medical assistance program, defined.
68-1910 - Medicare day, defined.
68-1911 - Medicare upper payment limit, defined.
68-1912 - Nursing facility, defined.
68-1913 - Quality assurance assessment, defined.
68-1914 - Resident day, defined.
68-1915 - Skilled nursing facility, defined.
68-1916 - Total resident days, defined.
68-1917 - Quality assurance assessment; payment; computation.
68-1919 - Reduction of quality assurance assessment; when.
68-1920 - Aggregate quality assurance assessment; limitation.
68-1921 - Quality assurance assessment; payments; form.
68-1922 - Department; collect quality assurance assessment; remit to State Treasurer.
68-1923 - Quality assurance assessment; report; medicaid cost report; how treated.
68-1924 - Underpayment or overpayment; notice.
68-1926 - Nursing Facility Quality Assurance Fund; created; use; investment.
68-1929 - Aggrieved party; hearing; petition.
68-1930 - Rules and regulations.