By Larry S. Hartley

Board Certified Specialist in Elder Law

by the NC State Bar Board of Legal Specialization

The Department of Health and Human Services at the Centers for Medicare and Medicaid Services approved an amendment to North Carolina’s State Medicaid Plan under Title XIX of the Social Security Act effective as of June 1, 2017.

In these changes North Carolina has formalized a change to their interpretation of real property that is owned by two or more people or entities as tenants-in-common to no longer include right of survivorship. This change had already been implemented without statutory authority in some counties including Buncombe County. It appears that this is going to spread most likely to all counties in North Carolina.

One positive aspect of this amended plan is that the amended plan directs the State Medicaid agency to present its estate claim within 90 days of being personally served the Notice to Creditors.

However one of the most troubling aspects of the newly amended plan is found in numbered paragraph 6. C. in which it is stated that:

“C.  The State Medicaid agency will defer estate recovery in the following circumstances:

  1. when the spouse of the Medicaid beneficiary is still living; or
  2. when the beneficiary has a surviving child, who is under age 21; or
  3. when the beneficiary has a surviving child of any age who is blind or disabled as provided in 42 U.S.C. Section 1396p(b)(2)(A); or
  4. when a qualified undue hardship applicant continues to meet the undue hardship criteria.

Estate recovery will be deferred only as long as at least one of these four circumstances is present. When none of the four circumstances are present, the State Medicaid agency will resume estate recovery. If the State Medicaid agency defers pursuing recovery based on one of these four circumstances, the State Medicaid agency may take legal measures to secure its claim against property of the Medicaid beneficiary’s estate.”

Unfortunately, it remains to be seen what steps the state of North Carolina will take based on this newly approved state Medicaid plan. It almost certainly will not be good news for families of Medicaid recipients. Families who are facing the possibility of a loved one being on Medicaid should justifiably be concerned. It’s highly recommended that families may want to review their planning efforts as a result of these changes. The North Carolina Elder Law Bar will undoubtedly continue to monitor or this new situation and will be putting in serious efforts to come up with methods to protect the families that they serve. We encourage clients and potential clients to contact the law firm at Strauss Attorneys PLLC to schedule consultations regarding this issue. For our Asheville office you may call 828 – 258 – 0994, and for our Hendersonville and Brevard offices you may call 828 – 696 – 1811 to schedule an appointment.

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