CHAPTER 392

FORMERLY

HOUSE BILL NO. 437

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 4

AN ACT TO AMEND TITLE 25 OF THE DELAWARE CODE BY ADDING A NEW CHAPTER 50 RELATING TO THE REQUIREMENTS OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1993 FOR STATE MEDICAID PROGRAMS TO SEEK ADJUSTMENT OR RECOVERY OF ANY MEDICAL ASSISTANCE CORRECTLY PAID ON BEHALF OF INDIVIDUALS RECEIVING LONG-TERM CARE SERVICES UNDER THE STATE PLAN FOR TITLE XIX OF THE SOCIAL SECURITY ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section One. Amend Title 25 of the Delaware Code by adding thereto a new Chapter to read:

"Chapter 50. Liens and Estate Recoveries.

§ 5001. Definitions.

(a) 'Department' means the Delaware Department of Health and Social Services.

(b) 'Long-term care' means a service provided in a long-term care facility or in the home as an alternative to institutionalization (known as home and community based services).

(c) 'Discharge from a long-term care service' means the release of a person from a long-term care facility for the purpose of returning to the home for permanent residence or discontinuance of a long-term services as an alternative to institutionalization.

(d) 'Lawfully residing in the home' means residing in the home with the permission of the owner or, if under guardianship, the owner's legal guardian.

(e) 'Residing in the home on a continuous basis' means using the home as the principal place of residence.

(f) 'Medical assistance' means payment by the State's program under Title XIX of the Social Security Act, or Medicaid Program, administered by the Department.

(g) 'Estate' means all real property, as well as all personal property which constitutes assets of the individual's estate as described in Chapter 19 of Title 12 of the Delaware Code.

(h) 'Real property' means land, including houses or immovable structures or objects attached permanently to the land. The terms
'real estate', 'realty', and 'real property' are used synonymously with one another and designate real property in which an individual has ownership rights and interests.

§502. Liens; Notice.

(a) Subject to the provisions of subsection (b) of this Section, for any individual who is 55 years of age or older when the individual receives services in a long-term care under facility the auspices of the Department, a lien shall be created against all real property of such individual, prior to the individual's death, upon approval of such individual for, and receipt of, services that will be paid, on that individual's behalf, fully or in part by the Department, and only after notice and opportunity for a hearing before the Department to establish that the person cannot reasonably be expected to return home.

b. The lien shall attach to real property upon the recording of a Notice of Lien being recorded by the Department at the Recorder of Deeds Office in the county where such real property is located.

c. The lien may be released by the Department recording a Release of Lien form at the Recorder of Deeds Office in the county where the real property is located.

(d) Any lien imposed pursuant to this section shall dissolve and be null and void upon the individual's discharge from the long-term care facility and return home. Any such lien shall be released by the Department upon such discharge.

§ 5003. Estate recovery.

In the case of any individual receiving long-term care from the Department, the Department shall seek recovery for any disbursements made on behalf of such individual under the State Plan for Medical Assistance, from the individual's estate or upon sale of property subject to a lien. The Department will seek recovery of monies expended for correctly paid medical assistance from all periods of eligibility for medical assistance on behalf of the individual only:

(a) after the death of the individual and the death of a surviving spouse who was residing in the home on a continuous basis; and

(b) in the case of liens on an individual's home, when there is no:

(i) surviving son or daughter who is blind or disabled as defined in accordance with the disability rule of the federally administered Supplemental Security Income (Title XVI of the Social Security Act) who was residing in the home on a continuous basis Immediately prior to the death of the individual; or

(11) non-disabled son, daughter, or sibling of the individual lawfully residing in the home, who has resided there for a period of at least two years immediately prior the date of the individual's admission to a long-term care service, who has lawfully resided there on a continuous basis since that time, and who can establish to the Department's satisfaction that he or she provided the care that permitted the individual to reside in the home rather than in a long-term care facility; or

(111) minor child who was residing in the home on a continuous basis immediately prior to the death of the individual, until that child reaches majority.

§ 5004. Voluntary reimbursement.

The Department shall accept reimbursement for medical assistance it has rendered when voluntarily offered by a current or former recipient of long-term care or someone acting on his/her behalf to offset any recovery under § 5003 of this chapter.

§ 5005. Undue hardship.

The Department shall, within three (3) months of enactment of this Act, establish procedures under which the Department shall waive the application of this Act if it would work an undue hardship.

§ 5006. Rules and regulations.

The Department shall establish rules and regulations by which it can carry out the terms of this law."

Section Two. Effective date:

This Act shall become effective on the expiration of sixty (60) days after its approval by the Governor.

Approved July 13, 1994.