Delaware Medicaid Estate Recovery

Recovery is generally blocked or delayed for: A surviving spouse, because the Department may act only after the death of the recipient and the death of a surviving spouse who was residing in the home on a continuous basis, and its own policy says it shall not seek recovery as long as there is a surviving spouse (25 Del. C. § 5003(1) and 16 DE Admin. Code 20500.5.1); A surviving child under age 21, because no recovery is sought while one is living (16 DE Admin. Code 20500.5.1); A surviving child of any age who is blind or disabled under the Supplemental Security Income disability rule and was residing in the home on a continuous basis immediately before the death (25 Del. C. § 5003(2)a and 16 DE Admin. Code 20500.5.1); A minor child who was residing in the home on a continuous basis immediately before the death, until that child reaches majority (25 Del. C. § 5003(2)c); A caregiver child or sibling, meaning a nondisabled child or sibling who lawfully lived in the home for at least the 2 years before the recipient entered long-term care, has lawfully lived there continuously since, and can satisfy the Department that the care they provided is what let the recipient stay at home rather than enter a facility (25 Del. C. § 5003(2)b and 16 DE Admin. Code 20500.5.2); A sibling lawfully residing in the recipient's home for the year before admission to long-term care, which blocks recovery on a lien against that home, although the Department states it can still recover from other assets in the estate (16 DE Admin. Code 20500.5.2); The home itself, while a spouse, a civil union partner, a child under 21, a blind or permanently and totally disabled child, or a sibling with an equity interest who lived there for at least the year before admission is lawfully residing in it, which stops the Department from filing a lien at all (25 Del. C. § 5002(b) and 16 DE Admin. Code 20500.6.1); A relative granted an undue hardship waiver. A civil union partner, child, grandchild, parent or sibling who lived in the recipient's home on a continuous basis for at least the 2 years before admission qualifies if they receive federal or state assistance for living expenses and have no other home to return to, or if total family income is at or below 200 percent of the current monthly federal poverty limit and total family resources convertible to cash, counting any real property they own, are $3,000 or less (25 Del. C. § 5005 and 16 DE Admin. Code 20500.5.3); A co-owner of real property that is a business, where the property is held with a civil union partner, child, grandchild, sibling or parent and the business contributes to the livelihood of that person or of their dependents or heirs, which stops both a lien and recovery (16 DE Admin. Code 20500.5.3.2 and 20500.6.1); A recipient who goes home, because a lien dissolves and is void once the person is discharged from the long-term care facility and returns home, and the Department releases it; a person expected home within 60 days of admission never has one filed (25 Del. C. § 5002(e) and 16 DE Admin. Code 20500.6.1).

After a Delaware Medicaid recipient who received long-term care dies, the Department of Health and Social Services seeks recovery of the disbursements Medicaid made on that person's behalf under the State Plan for Medical Assistance, either from the estate or upon the sale of property a Department lien attached to (25 Del. C. § 5003). The claim covers moneys expended for correctly paid medical assistance from all periods of eligibility, and the Department also takes voluntary reimbursement when a recipient or someone acting for the recipient offers it (25 Del. C. § 5004). The policy is written for people age 55 and over who applied for Department long-term care services, meaning nursing facility care, home and community-based waiver services, and community-based long-term care services and supports (16 DE Admin. Code 20500.1). Timing is limited twice over: recovery may happen only after the death of the recipient and the death of a surviving spouse who was residing in the home on a continuous basis, and where the claim rests on a lien against the home, only when no protected child, minor child or caregiving relative is living there (25 Del. C. § 5003(1) and (2)). Before death the Department may record a notice of lien with the Recorder of Deeds against the real property of a recipient who is 55 or older and receiving services in a long-term care facility, and only after notice and an opportunity for a hearing establishing that the person cannot reasonably be expected to return home; that lien dissolves and is released if the person is discharged and returns home (25 Del. C. § 5002). A recovery claim is a claim of the State against a decedent's estate, so it is barred unless it is presented within 8 months of the death (12 Del. C. § 2102(a)).

Yes. Delaware offers an undue-hardship waiver. Contact Delaware Department of Health and Social Services, Division of Medicaid and Medical Assistance at 302-571-4900 to request the waiver and ask about deadlines.

Delaware Department of Health and Social Services, Division of Medicaid and Medical Assistance, phone 302-571-4900, https://dhss.delaware.gov/dmma/.