§ 108A-70.5 — Medicaid Estate Recovery Plan

North Carolina § 108A-70.5

• Jurisdiction: North Carolina
• Ch. 108A: Social Services
• Art. 2: Programs of Public Assistance

Text

(a) There is established in the Department of Health and Human Services, the Medicaid Estate Recovery Plan, as required by the Omnibus Budget Reconciliation Act of 1993, to recover from the estates of recipients of medical assistance an equitable amount of the State and federal shares of the cost paid for the recipient. The Department shall administer the program in accordance with applicable federal law and regulations, including those under Title XIX of the Social Security Act, 42 U.S.C. § 1396(p).
(b) The following definitions apply in this section:
(1) Recodified as subdivision (b)(4) of this section by Session Laws 2021-88, s. 9(d).
(2) Estate. - All the real and personal property considered assets of the estate available for the discharge of debt pursuant to G.S. 28A-15-1. The Department has all rights available to estate creditors, including the right to qualify as personal representative or collector of an estate. For individuals who have received benefits under a qualified long-term care partnership policy as described in G.S. 108A-70.4, this term also includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.
(3) Repealed by Session Laws 2007-442, s. 1, effective August 23, 2007.
(4) Medical assistance. - Medical care services paid for by the North Carolina Medicaid Program on behalf of the recipient as follows:
a. If the recipient of any age is receiving medical care services as an inpatient in a nursing facility, intermediate care facility for individuals with intellectual disabilities, or other medical institution, and cannot reasonably be expected to be discharged to return home.
b. If the recipient is 55 years of age or older and is receiving one or more of the following medical care services:
1. Nursing facility services.
2. Home and community-based services.
3. Hospital care.
4. Prescription drugs.
5. Personal care services.
(c) The amount the Department recovers from the estate of any recipient shall not exceed the amount of medical assistance made on behalf of the recipient and is recoverable only for medical care services prescribed in subsection (b) of this section. The Department is a sixth-class creditor, as prescribed in G.S. 28A-19-6, for purposes of determining the order of claims against an estate; however, judgments in favor of other sixth-class creditors docketed and in force before the Department seeks recovery for medical assistance shall be paid prior to recovery by the Department.
(d) The Department of Health and Human Services shall adopt rules pursuant to Chapter 150B of the General Statutes to implement the Plan, including rules to waive whole or partial recovery when this recovery would be inequitable because it would work an undue hardship or because it would not be administratively cost-effective and rules to ensure that all recipients are notified that their estates are subject to recovery at the time they become eligible to receive medical assistance.
(e) Repealed by Session Laws 2007-442, s. 1, effective August 23, 2007.
(f) With regard to any recipient who has received compensation pursuant to Part 30 of Article 9 of Chapter 143B of the General Statutes, the Department shall reduce the amount of any recovery it seeks from the deceased recipient's estate under this section by the amount of the resource disregard provided for in G.S. 143B-426.56(b)(1). (1993 (Reg. Sess., 1994), c. 769, s. 25.47(a); 1997-443, s. 11A.118(a); 2002-126, s. 10.11(b); 2005-276, s. 10.21C(a); 2005-345, s. 16; 2006-66, s. 10.9B; 2007-145, s. 10; 2007-323, ss. 10.42(a), (b); 2007-442, s. 1(a); 2010-68, s. 2; 2012-18, s. 3.6; 2013-378, s. 2; 2014-100, s. 6.13(f); 2021-62, s. 4.1; 2021-88, s. 9(d), (e).)
§ 108A-70.6: Repealed by Session Laws 2007-442, s. 1(b), effective August 23, 2007.
§ 108A-70.7: Repealed by Session Laws 2007-442, s. 1(b), effective August 23, 2007.
§ 108A-70.8: Repealed by Session Laws 2007-442, s. 1(b), effective August 23, 2007.
§ 108A-70.9: Repealed by Session Laws 2007-442, s. 1(b), effective August 23, 2007.
Part 6A. Appeals Process for Certain Medicaid and NC Health Choice Determinations.
§ 108A-70.9A. Definitions; Medicaid recipient appeals.
(a) Definitions. - The following definitions apply in this Part:
(1) Adverse determination. - A determination by the Department to deny, terminate, suspend, or reduce a Medicaid service or an authorization for a Medicaid service through the fee-for-service program. An adverse benefit determination as defined in G.S. 108D-1 is not an adverse determination for purposes of this Part.
(1a) Adverse disenrollment decision. - As defined in G.S. 108D-1.
(1b) Contested Medicaid case. - A case commenced by (i) a Medicaid recipient appealing an adverse determination under this Part or (ii) a Medicaid recipient appealing an adverse disenrollment determination under G.S. 108D-5.9.
(2) OAH. - The Office of Administrative Hearings.
(3) Recipient. - A recipient and the recipient's parent, guardian, or legal representative, unless otherwise specified.
(b) Medicaid Recipient Appeals. - Notwithstanding any provision of State law or rules to the contrary, this section shall govern the process used by a Medicaid recipient to appeal an adverse determination made by the Department and the process used by a Medicaid recipient to appeal an adverse disenrollment determination by the Department.
(c) Notice. - Except as otherwise provided by federal law or regulation, at least 10 days before the effective date of an adverse determination, the Department shall notify the recipient, and the provider, if applicable, in writing of the adverse determination and of the recipient's right to appeal the adverse determination. The Department shall not be required to notify a recipient's parent, guardian, or legal representative unless the recipient's parent, guardian, or legal representative has requested in writing to receive the notice. The notice shall be mailed on the date indicated on the notice as the date of the determination. The notice shall include:
(1) An identification of the recipient whose services are being affected by the adverse determination, including the recipient's full name and Medicaid identification number.
(2) An explanation of what service is being denied, terminated, suspended, or reduced and the reason for the determination.
(3) The specific regulation, statute, or medical policy that supports or requires the adverse determination.
(4) The effective date of the adverse determination.
(5) An explanation of the recipient's right to appeal the Department's adverse determination in an evidentiary hearing before an administrative law judge.
(6) An explanation of how the recipient can request a hearing and a statement that the recipient may represent himself or herself or use legal counsel, a relative, or other spokesperson.
(7) A statement that the recipient will continue to receive Medicaid services at the level provided on the day immediately preceding the Department's adverse determination or the amount requested by the recipient, whichever is less, if the recipient requests a hearing before the effective date of the adverse determination. The services shall continue until the hearing is completed and a final decision is rendered.
(8) The name and telephone number of a contact person at the Department to respond in a timely fashion to the recipient's questions.
(9) The telephone number by which the recipient may contact a Legal Aid/Legal Services office.
(10) The appeal request form described in subsection (e) of this section that the recipient may use to request a hearing.
(c1) Notice Availability. - The Department shall make available to OAH a copy of the notice of adverse determination required under subsection (c) of this section. The information contained in the notice is confidential unless the recipient appeals the adverse determination under subsection (d) of this section. OAH may dispose of these records after one year.
(d) Appeals. - Except as provided by this section and G.S. 108A-70.9B, a request for a hearing to appeal an adverse determination of the Department under this section is a contested case subject to the provisions of Article 3 of Chapter 150B of the General Statutes. The recipient shall request a hearing within 30 days of the mailing of the notice required by subsection (c) of this section by filing an appeal request with OAH. Where a request for hearing concerns the reduction, modification, or termination of Medicaid services, including the failure to act upon a timely request for reauthorization with reasonable promptness, upon the receipt of a timely appeal, the Department shall reinstate the services to the level or manner prior to action by the Department as permitted by federal law or regulation. The Department may not influence, limit, or interfere with the recipient's decision to request a hearing.
(e) Appeal Request Form. - Along with the notice required by subsection (c) of this section, the Department shall also provide the recipient with an appeal request form which shall be no more than one side of one page. The form shall include the following:
(1) A statement that, in order to request an appeal, the recipient must file the form with OAH within 30 days of mailing of the notice, and the form may be filed by either (i) sending the form by mail or fax to the address or fax number listed on the form or (ii) calling the telephone number on the form and providing the information requested on the form.
(2) The recipient's name, address, telephone number, and Medicaid identification number.
(3) A preprinted statement that indicates that the recipient would like to appeal the specific adverse determination of which the recipient was notified in the notice.
(3a) The option for the recipient to request an expedited appeal.
(4) A statement informing the recipient that he or she may choose to be represented by a lawyer, a relative, a friend, or other spokesperson.
(5) A space for the recipient's signature and date.
(e1) Expedited Appeal Request. - In accordance with 42 C.F.R. § 431.224, a recipient may request that an appeal under subsection (d) of this section be expedited if the time otherwise permitted for a hearing could jeopardize the recipient's life, health, or ability to attain, maintain, or regain maximum function. With regard to a request for an expedited appeal, all of the following apply:
(1) The recipient shall submit any additional documentation from a licensed health care professional with relevant excerpts from the recipient's medical record that was not already provided with regard to the adverse determination to demonstrate the need for an expedited appeal.
(2) The Department shall determine if the recipient's request meets the criteria for an expedited appeal.
(3) If the Department determines that the recipient's request does not meet the criteria for an expedited appeal, then (i) the Department shall make reasonable efforts to give the recipient, or the recipient's parent, guardian, or legal representative, oral notice of the denial as expeditiously as possible and shall follow up with a written notice of denial and (ii) the recipient's appeal shall not be subject to the expedited time frame in subdivision (4) of this subsection. The denial is not appealable.
(4) If the Department determines that the recipient's request meets the criteria for an expedited appeal, then (i) the mediation procedure under G.S. 108A-70.9B(c) shall not apply to the appeal request and (ii) the decision required under G.S. 108A-70.9B(g) shall be made as expeditiously as possible.
(f) Final Decision. - After a hearing before an administrative law judge, the judge shall return the decision to the Department in accordance with G.S. 150B-37. The Department shall notify the recipient of the final decision and of the right to judicial review of the decision pursuant to Article 4 of Chapter 150B of the General Statutes. (2010-31, s. 10.30(a); 2011-398, s. 32; 2019-81, s. 6; 2021-62, ss. 2.1(a)-(c), 2.2(a), (b); 2022-74, s. 9D.15(z).)
§ 108A-70.9B. Contested Medicaid cases.
(a) Application. - This section applies only to contested Medicaid cases as defined in this Part. Except as otherwise provided by Article 1A of Chapter 108D of the General Statutes, G.S. 108A-70.9A, and this section governing time lines and procedural steps, a contested Medicaid case commenced by a Medicaid recipient is subject to the provisions of Article 3 of Chapter 150B of the General Statutes. To the extent any provision in this section, Article 1A of Chapter 108D of the General Statutes, or G.S. 108A-70.9A conflicts with another provision in Article 3 of Chapter 150B of the General Statutes, this section, Article 1A of Chapter 108D of the General Statutes, and G.S. 108A-70.9A control.
(b) Simple Procedures. - Notwithstanding any other provision of Article 3 of Chapter 150B of the General Statutes, the chief administrative law judge may limit and simplify the procedures that apply to a contested Medicaid case involving a Medicaid recipient in order to complete the case as quickly as possible.
(1) To the extent possible, OAH shall schedule and hear contested Medicaid cases within 55 days of submission of a request for appeal.
(2) Hearings shall be conducted telephonically or by video technology with all parties, however the recipient may request that the hearing be conducted in person before the administrative law judge. An in-person hearing shall be conducted in Wake County, however, for good cause shown, the in-person hearing may be conducted in the county of residence of the recipient or a nearby county. Good cause shall include, but is not limited to, the recipient's impairments limiting travel or the unavailability of the recipient's treating professional witnesses. The Department shall provide written notice to the recipient of the use of telephonic hearings, hearings by video conference, and in-person hearings before the administrative law judge, and how to request a hearing in the recipient's county of residence.
(3) The simplified procedure may include requiring that all prehearing motions be considered and ruled on by the administrative law judge in the course of the hearing of the case on the merits. An administrative law judge assigned to a contested Medicaid case shall make reasonable efforts in a case involving a Medicaid recipient who is not represented by an attorney to assure a fair hearing and to maintain a complete record of the hearing.
(4) The administrative law judge may allow brief extensions of the time limits contained in this section for good cause and to ensure that the record is complete. Good cause includes delays resulting from untimely receipt of documentation needed to render a decision and other unavoidable and unforeseen circumstances. Continuances shall only be granted in accordance with rules adopted by OAH and shall not be granted on the day of the hearing, except for good cause shown. If a petitioner fails to make an appearance at a hearing that has been properly noticed via certified mail by OAH, OAH shall immediately dismiss the contested case, unless the recipient moves to show good cause within three business days of the date of dismissal.
(5) The notice of hearing provided by OAH to the recipient shall include the following information:
a. The recipient's right to examine at a reasonable time before the hearing and during the hearing the contents of the recipient's case file and documents to be used by the Department in the hearing before the administrative law judge.
b. The recipient's right to an interpreter during the appeals process.
c. Circumstances in which a medical assessment may be obtained at agency expense and be made part of the record. Qualifying circumstances include those in which (i) a hearing involves medical issues, such as a diagnosis, an examining physician's report, or a medical review team's decision; and (ii) the administrative law judge considers it necessary to have a medical assessment other than that performed by the individual involved in making the original decision.
(c) Mediation. - Upon receipt of an appeal request form as provided by G.S. 108A-70.9A(e) or other clear request for a hearing by a Medicaid recipient, OAH shall immediately notify the Mediation Network of North Carolina, which shall contact the recipient within five days to offer mediation in an attempt to resolve the dispute. If mediation is accepted, the mediation must be completed within 25 days of submission of the request for appeal. Upon completion of the mediation, the mediator shall inform OAH and the Department within 24 hours of the resolution by facsimile or electronic messaging. If the parties have resolved matters in the mediation, OAH shall dismiss the case. OAH shall not conduct a hearing of any contested Medicaid case until it has received notice from the mediator assigned that either: (i) the mediation was unsuccessful, or (ii) the petitioner has rejected the offer of mediation, or (iii) the petitioner has failed to appear at a scheduled mediation.
(d) Burden of Proof. - The recipient has the burden of proof on all issues submitted in a contested Medicaid case to OAH and has the burden of going forward. The administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence.
(e) New Evidence. - The recipient shall be permitted to submit evidence regardless of whether obtained prior to or subsequent to the Department's actions and regardless of whether the Department had an opportunity to consider the evidence in making its adverse determination. When the evidence is received, at the request of the Department, the administrative law judge shall continue the hearing for a minimum of 15 days and a maximum of 30 days to allow for the Department's review of the evidence. Subsequent to review of the evidence, if the Department reverses its original decision, it shall immediately inform the administrative law judge.
(f) Issue for Hearing. - For each adverse determination and each adverse disenrollment determination, the hearing shall determine whether the Department substantially prejudiced the rights of the recipient and if the Department, based upon evidence at the hearing, did any of the following:
(1) Exceeded its authority or jurisdiction.
(2) Acted erroneously.
(3) Failed to use proper procedure.
(4) Acted arbitrarily or capriciously.
(5) Failed to act as required by law or rule.
(g) Decision. - The administrative law judge assigned to a contested Medicaid case shall hear and decide the case without unnecessary delay. The judge shall prepare a written decision and send it to the parties in accordance with G.S. 150B-37. (2010-31, s. 10.30(a); 2011-398, s. 33; 2014-100, s. 12H.27(b); 2019-81, s. 6; 2022-74, s. 9D.15(z).)
§ 108A-70.9C. Informal review permitted.
Nothing in this Part shall prevent the Department from engaging in an informal review of a contested Medicaid case with a recipient prior to issuing a notice of adverse determination under G.S. 108A-70.9A(c) or a notice of resolution under G.S. 108D-5.7. (2010-31, s. 10.30(a); 2019-81, s. 6.)
Part 7. Medical Assistance Provider False Claims Act.