§ 31 — Adjustment or recovery of payments

Section 31. (a) This subsection shall apply to estates of individuals dying prior to April first, nineteen hundred and ninety-five. There shall be no adjustment or recovery of medical assistance correctly paid except as follows:(1) Recovery from the Permanently Institutionalized: From the estate of an individual, regardless of age, who was an inpatient in a nursing facility or other medical institution when he or she received such assistance. Recovery of such assistance shall be limited to assistance provided on or after March twenty-second, nineteen hundred and ninety-one.(2) Recovery from Persons Age 65 and Over: From the estate of an individual who was sixty-five years of age or older when such individual received such assistance. Any recovery may be made only after the death of the surviving spouse, if any, and only at a time when such individual has no surviving child who is under age twenty-one or is blind or permanently and totally disabled. The division shall waive recovery where it would result in undue hardship, as defined by the division in its regulations.[ Subsection (b) effective until December 5, 2024. For text effective December 5, 2024, see below.](b) This subsection shall apply to estates of individuals dying on or after April first, nineteen hundred and ninety-five. There shall be no adjustments or recovery of medical assistance correctly paid except as follows:(1) Recovery from the Permanently Institutionalized: From the estate of an individual, regardless of age, who was an inpatient in a nursing facility or other medical institution when he or she received such assistance. Recovery of such assistance shall be limited to assistance provided on or after March twenty-second, nineteen hundred and ninety-one.(2) Recovery from Persons Age 65 and Over: From the estate of an individual who was sixty-five years of age or older when he or she received such assistance.(3) Recovery from Persons Age 55 and Over for Post-October 1, 1993 Medicaid: From the estate of an individual who was fifty-five years of age or older when he or she received such assistance, where such assistance was for services provided on or after October first, nineteen hundred and ninety-three.Any recovery may be made only after the death of the surviving spouse, if any, and only at a time when he or she has no surviving child who is under age twenty-one or is blind or permanently and totally disabled. The division shall waive recovery if such recovery would work an undue hardship, as defined by the division in its regulations.[ Subsection (b) as amended by 2024, 197, Sec. 20 effective December 5, 2024. For text effective until December 5, 2024, see above.](b) This subsection shall apply to estates of individuals dying on or after April 1, 1995 but not after July 31, 2024. There shall be no adjustments or recovery of medical assistance correctly paid except as follows:(1) Recovery from the Permanently Institutionalized: From the estate of an individual, regardless of age, who was an inpatient in a nursing facility or other medical institution when said individual received such assistance. Recovery of such assistance shall be limited to assistance provided on or after March 22, 1991.(2) Recovery from Persons Age 65 and Over: From the estate of an individual who was not less than 65 years of age when said individual received such assistance.(3) Recovery from Persons Age 55 and Over for Post-October 1, 1993 Medicaid: From the estate of an individual who was not less than 55 years of age when said individual received such assistance, where such assistance was for services provided on or after October 1, 1993.Recovery may be made only after the death of the surviving spouse, if any, and only at a time when such surviving spouse has no surviving child who is under 21 years of age or is blind or permanently and totally disabled. The division shall waive recovery if such recovery would work an undue hardship, as defined by the division in its regulations.[ Subsection (b1/2) inserted by 2024, 197, Sec. 20 effective December 5, 2024.](b1/2) This subsection shall apply to estates of individuals dying on or after August 1, 2024. There shall be no adjustments or recovery of medical assistance correctly paid except for recovery from the estate of an individual who was:(i) regardless of age, a resident in a nursing facility or other medical institution within the meaning of 42 U.S.C. 1396p(a)(1)(B)(i) when the individual received such assistance; provided, however, that recovery of such assistance shall be limited to assistance provided on or after March 22, 1991; or(ii) 55 years of age or older when the individual received such assistance, where such assistance was for services provided on or after October 1, 1993, but only for medical assistance consisting of nursing facility services, home and community-based services and related hospital and prescription drug services for which estate recovery is mandated under 42 U.S.C. 1396p(b)(1)(B)(i) or other federal law.Any recovery may be made only after the death of the surviving spouse, if any, and only at a time when the individual has no surviving child who is: (i) under the age of 21; or (ii) an individual who is blind or an individual with a disability.(c) For purposes of this section, "estate'' shall mean all real and personal property and other assets includable in the decedent's probate estate under the General Laws.(d) The division is also authorized during an individual's lifetime to recover all assistance correctly provided on or after April 1, 1995, if property against which the division has a lien or encumbrance under section 34 is sold. No lien or encumbrance shall be valid against any bona fide purchaser for value or take priority against any subsequent mortgagee for value unless and until it is recorded in the registry of deeds where the property lies.Repayment shall not be required under this subsection while any of the following relatives lawfully resides in the property: (1) a sibling who had been residing in the property for at least one year immediately prior to the individual being admitted to a nursing facility or other medical institution; or (2) a child who (i) had been residing in the property for at least two years immediately prior to the parent being admitted to a nursing facility or other medical institution; and (ii) establishes to the satisfaction of the division that he provided care which permitted the parent to reside at home during that two year period rather than in an institution; and (iii) has lawfully resided in the property on a continuous basis while the parent has been in the medical institution.If repayment is not yet required because a relative specified above is still lawfully residing in the property and the individual wishes to sell the property, the purchaser shall take possession subject to the lien or the division shall release the lien if the individual agrees to (1) either set aside sufficient assets to satisfy the lien or give bond to the division with sufficient sureties and (2) repay the division as soon as the specified relative is no longer lawfully residing in the property. Notwithstanding the foregoing or any general or special law to the contrary, the division and the parties to the sale may by agreement enter into an alternative resolution of the division's lien.This subsection shall not limit the division's ability to recover from the individual's estate under subsection (a) or (b) or as otherwise provided under any general or special law.[ Subsection (e) as added by 2024, 197, Sec. 21 effective December 5, 2024.](e) Notwithstanding subsection (b1/2), there shall be no adjustment or recovery of medical assistance correctly paid from the estate of an individual who was receiving such assistance under the CommonHealth program for adults with disabilities or for payment of personal care attendant services; provided, however, that the executive office shall seek federal authority, if required, to implement this subsection.