H. B. 2133
(By Delegate Hall)
[Introduced January 13, 2003; referred to the
Committee on Health and Human Resources then Finance.]
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 prohibiting the department
of health and human resources from collecting, from an estate
of a person who had received medicaid assistance, amounts
expended for the assistance.
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. Department of health and human resources not to recover
(a) Upon Prior to or after 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 not file a claim or
lien against the estate of the recipient for the total any 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) only
after the death of the individual's surviving spouse, if any and
only after such 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 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 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
(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 department shall not
receive double recovery for the same expenditure. The death of the
recipient shall neither extinguish nor diminish any right of such
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 lien attaches and 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 department, if such 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.
(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 prohibit the Department
of Health and Human Resources from collecting, from an estate of a
person who had received Medicaid assistance, amounts expended for the assistance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would