H. B. 2466
(By Mr. Speaker, Mr. Kiss, By Request)
[Introduced March 10, 1997; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact section eleven-c, article five,
chapter nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to requiring that
a medicaid lien be recorded in the office of the clerk of
the county commission to be perfected.
Be it enacted by the Legislature of West Virginia:
That section eleven-c, article five, chapter nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11c. Right of the department of health and human resources to recover medical assistance.
(a) Upon the death of a person who was fifty-five years of
age or older at the time the person received welfare assistance
consisting of nursing facility services, home and community-based
services, and related hospital and prescription drug services,
the department of health and human resources, in addition to any
other available remedy, may file a claim or lien against the estate of the recipient for the total amount of medical
assistance provided by medicaid for nursing facility services,
home and community-based services, and related hospital and
prescription drug services provided for the benefit of the
recipient. Claims so filed shall be classified as and included
in the class of debts due the state.
(b) The department may recover pursuant to subsection (a) of
this section, only after the death of the individual's surviving
spouse, if any and only after such the time as the individual has
no surviving children under the age of twenty-one, or when the
individual has no surviving children who meet the Social Security
Act's definition of blindness or permanent and total disability.
(c) The state shall have the right to place a lien upon the
property of individuals who are inpatients in a nursing facility,
intermediate care facility for the mentally retarded, or other
medical institution who, after notice and an opportunity for a
hearing, the state has deemed determined to be permanently
institutionalized. This lien shall be in an amount equal to
medicaid expenditures for services provided by a nursing
facility, intermediate care facility for the mentally retarded or
other medical institution, and shall be rendered against the
proceeds of the sale of property except for a minimal amount
reserved for the individual's personal needs. Any such lien
shall dissolve upon that individual's discharge from the medical
institution. The secretary has authority to compromise or
otherwise reduce the amount of this lien in cases where
enforcement would create a hardship.
(d) No lien may be imposed on such the individual's home
when the home is the lawful residence of: (1) The spouse of the
individual; (2) the individual's child who is under the age of
twenty-one; (3) the individual's child meets the Social Security
Act's definition of blindness or permanent and total disability;
or (4) the individual's sibling has an equity interest in the
home and was residing in the home for a period of at least one
year immediately before the date of the individual's admission to
a medical institution.
(e) The filing of a claim, pursuant to this section, shall
neither reduce nor diminish the general claims of the department
of health and human resources, except that such the department
shall may not receive double recovery for the same expenditure.
The death of the recipient shall neither extinguish nor diminish
any right of such the department to recover. Nothing in this
section affects or prevents a proceeding to enforce a lien
pursuant to this section or a proceeding to set aside a
fraudulent conveyance.
(f) Any claim or lien imposed pursuant to this section is
effective for the full amount of medical assistance provided by
medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services.
Said The lien attaches and is erperfected when the lien is recorded
in the office of the clerk of the county commission in the county
where the estate is locoated , and, when perfected, is perfected
automatically as of the beginning date of medical assistance, the
date when a recipient first receives treatment for which the department of health and human resources may be obligated to
provide medical assistance. A claim may be waived by such the
department, if such the department determines, pursuant to
applicable federal law and rules and regulations, that the claim
will cause substantial hardship to the surviving dependents of
the deceased. Notwithstanding any provision to the contrary, a
lien imposed pursuant to this section is not perfected until the
lien is recorded in the office of the clerk of the county
commission in the county where the estate is located.
(g) Upon the effective date of this section, the attorney
general, on behalf of the state of West Virginia, shall commence
an action in a court of competent jurisdiction to test the
validity, constitutionality and the ability of the Congress of
the United States to mandate the implementation of this section.
This subsection does not limit the right of others, including
recipients, to intervene in any litigation, nor does it limit the
discretion of the attorney general or appropriate counsel to seek
affected persons to act as parties to the litigation, either
individually or as a class.
NOTE: The purpose of this bill is to require that a
medicaid lien be recorded in the office of the clerk of the
county commission to be perfected.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
GOVERNMENT ORGANIZATION COMMITTEE AMENDMENT
On page four, section eleven-c, line eight, following the
words "attaches and" by inserting the words "is perfected when
the lien is recorded in the office of the clerk of the county commission in the county where the estate is located, and, when
perfected" and a comma.
And,
On page four, section eleven-c, line fifteen, following the
word "deceased" and the period by striking out the remainder of
the paragraph.