Montana Medicaid Estate Recovery

Recovery is generally blocked or delayed for: No recovery while the recipient's spouse is still living (Mont. Code Ann. 53-6-167(9)(b)). Recovery can proceed after the surviving spouse dies; No recovery while the recipient has a surviving child who is under 21 years old (Mont. Code Ann. 53-6-167(9)(b)); No recovery while the recipient has a surviving child of any age who is blind or permanently and totally disabled (Mont. Code Ann. 53-6-167(9)(b)). Recovery can proceed after that child dies; The personal representative or another affected person may apply to DPHHS for an undue hardship waiver once the department presents its claim, and DPHHS must waive recovery in whole or in part if recovery would cause undue hardship as its rules define it (Mont. Code Ann. 53-6-167(8)). Every department claim must include notice of this right (53-6-167(3)). A denial can be raised only in the court proceeding on the department's claim, not through a contested case hearing (53-6-167(8)(c)). A separate waiver applies to a real-property lien under 53-6-180; DPHHS may also waive recovery if it decides recovery would not be cost-effective, weighing the cost of recovery, the amount likely to be recovered, and whether recovery would make someone eligible for public assistance (Mont. Code Ann. 53-6-167(7)); Sibling or child living in the home: DPHHS cannot place a lifetime lien on the home while it is lawfully lived in by the spouse, a child under 21, blind or permanently and totally disabled, or a sibling who lived there for at least 18 months immediately before the recipient was institutionalized (Mont. Code Ann. 53-6-171(1)(b)). Once a lien exists, DPHHS may not collect on it while a sibling or child who lived in the home lawfully and continuously for at least 18 months before the institutionalization still lives there (53-6-178(2)). That protection covers the lien only: 53-6-178(2) states that it does not prevent recovery under the estate-claim sections 53-6-167, 53-6-168 or 53-6-169; Montana's code has no separate caregiver-child exemption from the estate claim under 53-6-167. The only resident-child protection in the statute is the 18-month lien rule in 53-6-178(2), which reaches a child of any age but applies to the lien only. A family relying on a caregiver child should raise it with the Estate Recovery Program and in any undue hardship application.

After a Medicaid recipient dies, DPHHS recovers the 'recoverable medical assistance' Montana paid for that person. Under Mont. Code Ann. 53-6-165(4), that means payments for items and services, plus insurance premiums, deductibles and coinsurance paid on the recipient's behalf, either while the recipient was at least 55 years old or while the recipient was an inpatient in a nursing facility, an intermediate care facility for the developmentally disabled, or an institution for mental disease whom the department had found was not reasonably expected to be discharged and return home. Medicare cost sharing and the benefits described in 42 U.S.C. 1396a(a)(10)(E) are excluded from the term. Under 53-6-167(1) the department presents a claim against the recipient's estate within the time set in the published notice to creditors, and it does not have to open a probate case itself to do so. Under 53-6-167(2) it may also present a claim against any person who received the recipient's property by distribution or survival, for the lesser of the recoverable assistance or the value of what that person received, and it may sue in district court to collect; that action must start within 3 years of the later of the death or the closing of the estate (53-6-167(4)(b)). Two related rules move money to the department outside the estate claim: a nursing facility, financial institution or other person holding the personal funds of a deceased nursing-facility resident who ever received Medicaid must pay those funds to DPHHS within 30 days of the death (53-6-168), and anyone holding more than $5,000 set aside for the recipient's burial must pay what is left after the funeral to DPHHS within 30 days of the final disposition (53-6-169). During the recipient's lifetime, DPHHS must also place a lien on the home and other real property of a permanently institutionalized recipient, subject to the residence exceptions in 53-6-171.

Yes. Montana offers an undue-hardship waiver. Contact Montana Department of Public Health and Human Services (DPHHS), Office of Inspector General, Third Party Liability Unit, Estate Recovery Program at (406) 444-9440, option 1 to request the waiver and ask about deadlines.

Montana Department of Public Health and Human Services (DPHHS), Office of Inspector General, Third Party Liability Unit, Estate Recovery Program, phone (406) 444-9440, option 1, https://dphhs.mt.gov/oig/PC/PCTPL.