H*4053(Rat #0179, Act #0093 of 1997)  General Bill, By  House Ways and Means
 A BILL TO AMEND SECTION 43-7-460, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
 1976, RELATING TO RECOVERY FROM ESTATES OF CERTAIN INDIVIDUALS FOR MEDICAL
 ASSISTANCE, SO AS TO ESTABLISH CONDITIONS FOR UNDUE HARDSHIP UNDER WHICH SUCH
 RECOVERY MUST BE WAIVED UNTIL THE SECRETARY OF THE UNITED STATES DEPARTMENT OF
 HEALTH AND HUMAN SERVICES ESTABLISHES CRITERIA.

   04/22/97  House  Introduced, read first time, placed on calendar
                     without reference HJ-8
   04/29/97  House  Read second time HJ-50
   04/30/97  House  Read third time and sent to Senate HJ-20
   05/01/97  Senate Introduced and read first time SJ-15
   05/01/97  Senate Referred to Committee on Medical Affairs SJ-15
   05/20/97  Senate Committee report: Favorable Medical Affairs SJ-19
   05/21/97  Senate Read second time SJ-36
   05/21/97  Senate Ordered to third reading with notice of
                     amendments SJ-36
   05/22/97  Senate Read third time and enrolled SJ-27
   06/04/97         Ratified R 179
   06/10/97         Signed By Governor
   06/10/97         Effective date 06/10/97
   06/24/97         Copies available
   06/24/97         Act No. 93

AN ACT TO AMEND SECTION 43-7-460, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RECOVERY FROM ESTATES OF CERTAIN INDIVIDUALS FOR MEDICAL ASSISTANCE, SO AS TO ESTABLISH CONDITIONS FOR UNDUE HARDSHIP UNDER WHICH SUCH RECOVERY MUST BE WAIVED UNTIL THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ESTABLISHES CRITERIA.

Be it enacted by the General Assembly of the State of South Carolina:

Estate recovery of medical assistance; criteria for undue hardship

SECTION 1. Section 43-7-460 of the 1976 Code, as last amended by Act 71 of 1995, is further amended to read:

"Section 43-7-460. (A) The State Department of Health and Human Services shall seek recovery of medical assistance paid under the Title XIX State Plan for Medical Assistance from the estate of an individual who:

(1) at the time of death was an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution if the individual is required, as a condition of receiving services in the facility under the state plan, to spend for costs of medical care all but a minimal amount of the person's income required for personal needs; or

(2) was fifty-five years of age or older when the individual received medical assistance, but only for medical assistance consisting of nursing facility services, home and community-based services, and hospital and prescription drug services provided to individuals in nursing facilities or receiving home and community-based services.

(B) Recovery under this section may be made only after the death of the decedent's surviving spouse, if any, and only at a time when the decedent has no surviving child under age twenty-one or no child who is blind or permanently and totally disabled as defined in Title XVI of the Social Security Act.

(C) Recovery under this section must be waived by the department upon proof of undue hardship, asserted by an heir or devisee of the property claimed pursuant to 42 U.S.C. 1396p(b)(3). Until conflicting hardship standards and criteria are issued by the Secretary of the United States Department of Health and Human Services, the following are

considered instances of undue hardship in which recovery must be waived:

(1) with respect to the decedent's home property, if the decedent could have transferred the home property on or after the date of his or her Medicaid application without incurring a penalty under 42 U.S.C. Section 1396p(c), if the property could have been transferred without penalty to a:

(a) spouse who has survived the decedent;

(b) surviving child of the decedent who was under age twenty-one or blind or totally disabled;

(c) surviving sibling of the decedent who possessed an equity interest in the property and who lived in the home for a period of at least one year immediately prior to the date the decedent was institutionalized; or

(d) surviving child of the deceased who lived in the home for a period of at least two years immediately before the decedent became institutionalized and who provided care which allowed the decedent to delay institutionalization.

However, hardship under this item only applies if the individual to whom the property could have been transferred without penalty is actually residing in the home at the time the hardship is claimed and this hardship status only protects up to one hundred thousand dollars of appraised value of the home property and to the extent the appraised value of the home property exceeds one hundred thousand dollars, that portion of the value that exceeds one hundred thousand dollars, is subject to recovery by the department as otherwise authorized under this section.

(2) with respect to the decedent's home and one acre of land surrounding the house, if an immediate family member:

(a) has resided in the home for at least two years immediately prior to the recipient's death;

(b) is actually residing in the home at the time the hardship is claimed;

(c) owns no other real property or agrees to sell all other interest in real property and give the proceeds to the department; and

(d) has annual gross family income that does not exceed one hundred eighty-five percent of the federal poverty guidelines.

(3) with respect to an income producing asset:

(a) the spouse's or immediate family member's annual gross family income would fall below the federal poverty guidelines without the income produced by the asset; and

(b) at the time of death, the asset is not producing annual income in excess of one hundred eighty-five percent of the federal poverty guidelines or the spouse or immediate family member agrees to pay all income in excess of one hundred eighty-five percent of the federal poverty guidelines to the department until the department recovers all medical assistance due under this section.

(D) Recovery of medical assistance payments under this section applies to medical assistance paid after June 30, 1994.

(E) Claims against an estate under this section have priority as established in Section 62-3-805(a)(2)(ii).

(F) For purposes of this section:

(1) 'estate' means all real and personal property and other assets included within the individual's estate as defined in Section 62-1-201(11);

(2) the 'state plan' means Title XIX State Plan for Medical Assistance in effect at the decedent's death;

(3) 'immediate family member' means a child, parent, brother, or sister of the deceased.

(G) Notwithstanding subsection (A)(2) upon the enactment of any amendments to federal law which grants states the option to exempt home and community-based services or other noninstitutional Medicaid services from the estate recovery provisions mandated by Section 13612 of the federal Omnibus Budget Reconciliation Act of 1993, the State Health and Human Services Finance Commission shall seek recovery of medical assistance paid under the Title XIX State Plan for Medical Assistance from the estate of an individual who:

(1) at the time of death was an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution if the individual is required, as a condition of receiving services in the facility under the state plan, to spend for costs of medical care all but a minimal amount of the person's income required for personal needs; or

(2) was fifty-five years of age or older when the individual received medical assistance but only for medical assistance consisting of nursing facility services."

Time effective

SECTION 2. This act takes effect upon approval by the Governor.

Approved the 10th day of June, 1997.