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56 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 20500 Estate Recovery and Liens BACKGROUND The Delaware Department of Health and Social Services (DHSS), in order to comply with Chapter 50, Title 25 of the Delaware Code and Section 1917 of the Social Security Act as amended by Section 13612 of the Omnibus Budget Reconciliation Act of 1993, and Delaware House Bill No. 437 as amended by House Amendment Nos. 1, 2, and 4, has established policies and procedures for filing liens against the real property, and recovering from estates of, individuals applying for or receiving DHSS long-term care services. 20500.1 Application These policies and procedures shall apply to individuals age 55 and over who are applying for DHSS Long Term Care Services. This includes nursing facility services, home and community-based waiver services, and community- based long-term care services and supports. Medicaid benefits paid for Medicare cost-sharing expenses, with a date of service on or after January 1, 2010, are exempted from estate recovery. These benefits include Part A and B premiums, deductibles, coinsurance, and co-payments. The date of service for deductibles, coinsurance, and co-payments is the date the request for payment is received by the State Medicaid agency. The date of service for premiums is the date the State Medicaid Agency pays the premium. 16 DE Reg. 423 (10/01/12) 20500.2 Notification All applicants will be informed of the Estate Recovery and Lien Policy and procedures at the time of application. Recipients who turn 55 after their cases are active will be informed of the policy and procedures at their first financial redetermination after their 55th birthday. Notification of the policy will be via recovery forms and/or a letter, that will be provided to the applicant or the applicant’s representative. 16 DE Reg. 423 (10/01/12) 20500.3 Definitions The following definitions apply to this section: Child means offspring or legally adopted child of the recipient or the applicant. Civil Union Partner means an individual who enters into a legal union with another individual of the same sex. Estate means all real property, as well as all personal property that constitutes assets of the individual’s estate as described in Chapter 19 of Title 12 of the Delaware Code. Family means legal spouse, dependent parents (claimed for income tax purposes), and children. 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. Legal representative means power of attorney over property or guardian of property. Long-term care means a service provided in a long-term care facility or in the home as an alternative to institutionalization (known as Long-Term Care Community Services or home and community-based services (1915(c) waivers). 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. Residing in the home on a continuous basis means using the home as the principal place of residence. Sibling means brother, sister, legally adopted brother or sister, half brother or half sister. 16 DE Reg. 423 (10/01/12) 20500.4 Recoveries DHSS shall seek recovery after the individual’s death or upon sale of the property subject to a lien, when long term care assistance has been paid on behalf of an individual. 20500.5 Recovery Exceptions 20500.5.1 Family Member Residing 20500.5.2 Lien Recovery Exceptions 20500.5.3 Undue Hardship 20500.5.1 Family Member Residing DHSS shall not seek recovery as long as there is: