TITLE 8 SOCIAL SERVICES
CHAPTER 200 MEDICAID ELIGIBILITY - GENERAL RECIPIENT
RULES
PART 430 RECIPIENT RIGHTS AND
RESPONSIBILITIES
8.200.430.1 ISSUING
AGENCY: New Mexico Human Services Department (HSD).
[8.200.430.1 NMAC -
Rp, 8.200.430.1 NMAC, 1/1/2014]
8.200.430.2 SCOPE: The
rule applies to the general public.
[8.200.430.2 NMAC -
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8.200.430.3 STATUTORY
AUTHORITY: The New Mexico medicaid program and other
health care programs are administered pursuant to regulations promulgated by
the federal department of health and human services under Title XIX of the
Social Security Act as amended or by state statute. See Section 27-1-12 et seq., NMSA 1978.
[8.200.430.3 NMAC -
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8.200.430.4 DURATION:
Permanent.
[8.200.430.4 NMAC -
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8.200.430.5 EFFECTIVE
DATE: January 1, 2014, unless a later date is cited
at the end of a section.
[8.200.430.5 NMAC -
Rp, 8.200.430.5 NMAC, 1/1/2014]
8.200.430.6 OBJECTIVE: The
objective of this rule is to provide specific instructions when determining
eligibility for the medicaid program and other health care programs. Generally, applicable eligibility rules are
detailed in the medical assistance division (MAD) eligibility policy manual,
specifically 8.200.400 NMAC, General
Medicaid Eligibility. Processes for
establishing and maintaining MAD eligibility are detailed in the income support
division (ISD) general provisions 8.100 NMAC, General Provisions for Public Assistance Programs.
[8.200.430.6 NMAC -
Rp, 8.200.430.6 NMAC, 1/1/2014]
8.200.430.7 DEFINITIONS: [RESERVED]
8.200.430.8 [RESERVED]
[8.200.430.8 NMAC - N, 1/1/2014; A, 10/1/2017]
8.200.430.9 RECIPIENT RIGHTS AND RESPONSIBILITIES:
A. An individual
has the right to apply for medicaid and other health care programs HSD
administers regardless of whether it appears he or she may be eligible.
(1) Income
support division (ISD) determines eligibility for the medical assistance
division’s medical assistance programs (MAP), unless otherwise determined by
another entity as stated in 8.200.400 NMAC.
A decision shall be made promptly on applications in accordance with the
timeliness standards set forth in 8.100.130 NMAC.
(2) Individuals
who might be eligible for supplemental security income (SSI) are referred to
the social security administration (SSA) office to apply.
B. Application: A paper or electronic application is required
from the applicant, an authorized representative, or, if the applicant is
incompetent or incapacitated, someone acting responsibly for the
applicant. The applicant may complete a
joint MAP, cash assistance, supplemental nutrition assistance program (SNAP)
and low income home energy assistance (LIHEAP) application or a MAP-only
application.
(1) The
following do not require an application unless a re-determination is due in
that month or the following month, as applicable:
(a) switching
from one of the medical assistance for women, children (MAWC) and families MAP
categories to another;
(b) switching
between medicaid and refugee medical assistance; and
(c) switching
to or from one of the long term care medicaid categories.
(2) Medicare
savings programs (MSP):
(a) A
MAP eligible recipient receiving full benefits is automatically deemed eligible
for MSP when she or he receives free medicare Part-A hospital insurance; the
eligible recipient does not have to apply for medicare MSP;
(b) When
an individual is not eligible for free medicare Part A hospital insurance, a
separate application for the MAP qualified medicare beneficiary (QMB)
eligibility category 040 is required.
Individuals must apply for medicare Part A with the SSA. This is called, “conditional Part A” because
they will receive medicare Part A on the condition that the MAP QMB category of
eligibility is approved. When QMB is
approved, the cost of the premium for Part A will be covered by MAD.
C. Responsibility in the application or
recertification process: The
applicant or the re-determining eligible recipient is responsible for providing
verification of eligibility. Refer to
8.100.130 NMAC.
(1) An
applicant or an eligible recipient's failure to provide necessary verification
results in MAP ineligibility.
(2) An
applicant or a re-determining eligible recipient must give HSD permission to
contact other individuals, agencies, or sources of information which are
necessary to establish eligibility.
[8.200.430.9 NMAC -
Rp, 8.200.430.9 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.10 FREEDOM OF CHOICE: Except
when specifically waived from MAD, an eligible recipient has the freedom to
obtain physical and behavioral health services from a MAD provider of his or
her choice.
[8.200.430.10 NMAC -
Rp, 8.200.430.10 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.11 RELEASE OF INFORMATION: By
signing the MAP application, an applicant or a re-determining eligible recipient
gives HSD explicit consent to release information to applicable state or
federal agencies, physical or behavioral health providers, or an HSD designee
when the information is needed to provide, monitor, or approve MAD
services. Physical and behavioral health
information is confidential and is subject to the standards for confidentiality
per 8.300.11 NMAC.
[8.200.430.11 NMAC -
Rp, 8.200.430.11 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.12 RIGHT TO HEARING: An
applicant or an eligible recipient is entitled to adequate notice of a HSD
adverse action regarding his or her termination or re-categorization of his or
her MAP category of eligibility. The
applicant or re-determining eligible recipient has specific rights and
responsibilities when requesting a HSD administrative hearing. A HSD administrative hearing affords the
applicant or re-determining eligible recipient the opportunity to have an
impartial review of these decisions. See
8.352.2, 8.100.180 and 8.100.970 NMAC for a detailed description of these
rights, responsibilities and the HSD administrative hearing process. 8.352.2 NMAC further details the rights,
responsibilities and the HSD administrative hearing process for other adverse
actions MAD, its utilization review contractor or a HSD contracted managed care
organization (MCO) may initiate (42 CFR Section 431.220(a)(1)(2)).
[8.200.430.12 NMAC -
Rp, 8.200.430.12 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.13 ASSIGNMENT OF SUPPORT: As a
condition of MAP eligibility, HSD requires an applicant or a re-determining
eligible recipient to assign his or her medical care support rights to HSD for
medical support and any third party payments.
The assignment authorizes HSD to pursue and make recoveries from liable
third parties (42 CFR 433.146; Subsection G of 27-2-28 NMSA 1978.
A. Assigning medical
support rights: The
assignment to HSD of an eligible recipient’s rights to medical support and
payments occurs automatically under New Mexico law when the applicant or the re-determining
eligible recipient signs the application.
B. Third party liability (TPL): This section describes HSD’s responsibility to
identify and collect from primarily responsible third parties and the eligible
recipient’s responsibility to cooperate with HSD to uncover such payments. MAD is the payer of last resort. If other third party resources are available,
these health care resources must be used before MAD makes a reimbursement. As a condition of MAP eligibility, an
applicant assigns his or her rights to physical and behavioral health support
and payments to HSD and promises to cooperate in identifying, pursuing, and collecting
payments from these resources. Third
party resources include the gross recovery by eligible recipient, including
personal injury protection benefits, before any reduction in attorney’s fees or
costs, obtained through settlement or verdict, for personal injury negligence
or intentional tort claims or actions, up to the full amount of MAD payments
for treatment of injuries causally related to the occurrence that is the
subject of the claim or action.
(1) Required TPL information: During the initial determination or re-determination
of eligibility for MAP enrollment, ISD must obtain information about TPL from
either the applicant or the re-determining eligible recipient.
(a) HSD
is required to take all reasonable measures to determine the legal liability of
third parties, including health insurers in paying for the physical and
behavioral health services furnished to an eligible recipient (42 CFR
433.138(a)).
(b) HSD
uses the information collected at the time of determination in order for MAD to
pursue claims against third parties.
(2) Availability of health insurance: If an applicant or an eligible recipient has
health insurance, the applicant or the eligible recipient shall notify
ISD. ISD must collect all relevant
information, including name and address of the insurance company; individuals
covered by the policy, effective dates, covered services, and appropriate
policy numbers.
(a) An
applicant or an eligible recipient with health insurance coverage or coverage
by a health maintenance organization (HMO) or other managed care plan (plan)
must be given a copy of the TPL recipient information letter.
(b) If
there is an absent parent, ISD may request the absent parent's name and social
security number (SSN).
(c) ISD
must determine if an absent parent, relative, applicant or any member of the
household is employed and has health insurance coverage.
(3) Eligible recipients with health insurance
coverage: An applicant or an
eligible recipient must inform his or her MAD providers of his or her TPL. An applicant or an eligible recipient must
report changes to or terminations of insurance coverage to ISD. If an applicant or an eligible recipient has
health coverage through an HMO or plan, payment from MAD is limited to
applicable copayments required under the HMO or plan and to MAD covered
services documented in writing as exclusions by the HMO or plan.
(a) If
the HMO or plan uses a drug formulary, the medical director of the HMO or plan
must sign and attach a written certification for each drug claim to document
that a pharmaceutical product is not covered by the HMO or plan. The signature is a certification that the HMO
or plan drug formulary does not contain a therapeutic equivalent that
adequately treats the physical or behavioral health condition of the HMO or
plan subscriber.
(b) Physical
and behavioral health services not included in the HMO or plan are covered by
MAD only after review of the documentation and on approval by MAD.
(c) An
applicant or an eligible recipient covered by an HMO or plan is responsible for
payment of medical services obtained outside the HMO or plan and for medical
services obtained without complying with the rules or policies of the HMO or
plan.
(d) An
applicant or an eligible recipient living outside an HMO or plan coverage area
may request a waiver of the requirement to use HMO or plan providers and
services. The applicant or the eligible
recipient for whom a coverage waiver is approved by MAD may receive
reimbursement for expenses which allow him or her to travel to an HMO or plan
participating provider, even when the provider is not located near the
applicant or the eligible recipient's residence.
(4) Potential health care resources: ISD must evaluate the presence of a TPL
source if certain factors are identified during the MAD eligibility interview.
(a) When the age of the applicant or the eligible
recipient is over 65 years old medicare
must be explored. A student, especially
a college student, may have health or accident insurance through his or her
school.
(b) An
application on behalf of deceased individual must be examined for "last
illness" coverage through a life insurance policy.
(c) Certain
specific income sources are indicators of possible TPL which include:
(i) railroad
retirement benefits and social security retirement or disability benefits indicating
eligibility for Title XVIII (medicare) benefits;
(ii) workers'
compensation (WC) benefits paid to employees who suffer an injury or accident
caused by conditions arising from employment; these benefits may compensate
employees for physical and behavioral health expenses and lost income; payments
for physical and behavioral health expenses may be made as physical and
behavioral health bills are incurred or as a lump sum award;
(iii) black
lung benefits payable under the coal mine workers' compensation program,
administered by the federal department of labor (DOL), can produce benefits
similar to railroad retirement benefits if the treatment for illness is related
to the diagnosis of pneumoconiosis; beneficiaries are reimbursed only if services
are rendered by specific providers, authorized by the DOL; black lung payments
are made monthly and physical and behavioral health expenses are paid as they
are incurred; and
(iv) Title
IV-D support payments or financial support payments from an absent parent may
indicate the potential for physical and behavioral health support; if a
custodial party does not have health insurance that meets a minimum standard,
the court in a divorce, separation or custody and support proceeding may order
the parent(s) with the obligation of support to purchase insurance for the
eligible recipient child (45 CFR 303.31(b)(1); Paragraph (1) of Subsection A of
Section 40-4C-4 NMSA 1978; insurance can be obtained through the parent's
employer or union (Paragraph (2) of Subsection A of Section 40-4C-4 NMSA 1978;
parents may be ordered to pay all or a portion of the physical and behavioral
health expenses; for purposes of physical l and behavioral health support, the
minimum standards of acceptable coverage, deductibles, coinsurance, lifetime
benefits, out-of-pocket expenses, co-payments, and plan requirements are the
minimum standards of health insurance policies and managed care plans
established for small businesses in New Mexico; see New Mexico insurance code.
(d) An
applicant or an eligible recipient has
earned income: Earned income may
indicate physical, behavioral health and health insurance made available by an
employer.
(e) Work history or military services: Work history may indicate eligibility for
other cash and physical and behavioral benefits. Previous military service suggests the
potential for veterans administration (VA) or department of defense (DOD)
health care, including the civilian health and the medical program of the United
States (CHAMPUS), for individuals who reside within a 40-mile radius of a
military health care facility. An
applicant or an eligible recipient who is eligible for DOD health care must
obtain certification of non-availability of medical services from the base
health benefits advisor in order to be eligible for CHAMPUS.
(f) An applicant or an eligible recipient's
expenses show insurance premium payments: Monthly expense information may show that the
applicant or the eligible recipient pays private insurance premiums or is
enrolled in an HMO or plan.
(g) The applicant or the eligible recipient has a
disability: Disability
information contained in applications or brought up during interviews may
indicate casualties or accidents involving legally responsible third parties.
(h) The applicant or the eligible recipient has a
chronic disease: Individuals with
chronic renal disease are probably entitled to medicare. Applications for social security disability
may be indicative of medicare coverage.
(5) Communicating TPL information: Information concerning health insurance or
health plans is collected and transmitted to MAD by ISD, child support
enforcement division (CSED), SSA, and the children, youth and families
department (CYFD).
[8.200.430.13 NMAC -
Rp, 8.200.430.13 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.14 ELIGIBLE RECIPIENT RESPONSIBILITY TO
COOPERATE WITH ASSIGNMENT OF SUPPORT RIGHTS:
A. Cooperation: As a condition of MAP eligibility, an
applicant or an eligible recipient must cooperate with HSD to:
(1) obtain
physical and behavioral health support and payments for his or herself and
other individuals for whom he or she can legally assign rights;
(2) pursue
liable third parties by identifying individuals and providing information to
HSD;
(3) cooperate
with CSED to establish paternity and medical support as appropriate, see
8.50.105.12 NMAC;
(4) appear
at a state or local office designated by HSD to give information or evidence
relevant to the case, appear as a witness at a court or other proceeding or give
information or attest to lack of information, under penalty of perjury;
(5) refund
HSD any money received for physical or behavioral health care that has already
been paid; this includes payments received from insurance companies, personal
injury settlements, and any other liable third party; and
(6) respond to the trauma inquiry letter
that is mailed to an eligible
recipient (42 CFR 433.138(4); the letter asks an eligible recipient to provide
more information about possible accidents, causes of accidents, and whether legal
counsel has been obtained (42 CFR 433.147; 45 CFR 232.42, 232.43; Paragraph (3)
of Subsection G of Section 27-2-28 NMSA 1978.
B. Good cause waiver of cooperation:
The requirements for cooperation may be waived by HSD if it decides that
the applicant or the eligible recipient has good cause for refusing to
cooperate. Waivers can be obtained for
cooperating with CSED. The applicant or
the eligible recipient should request a good cause waiver from CSED per
8.50.105.14 NMAC.
C. Penalties for failure to cooperate:
(1) When
the parent, the specified relative or legal guardian fails or refuses to
cooperate, the parent or specified relative will not be eligible for MAD
services. The eligible recipient child
maintains MAP eligibility provided all other eligibility criteria are met.
(2) When
the parent or the specified relative fails or refuses to refund payments
received from insurance or other settlement sources, such as personal injury
case awards, he or she is not eligible for MAD services for one year and until
full restitution has been made to HSD.
The eligible recipient child maintains MAP eligibility provided all
other eligibility criteria are met.
[8.200.430.14 NMAC -
Rp, 8.200.430.14 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.15 ELIGIBLE RECIPIENT RESPONSIBILITY TO GIVE PROVIDER PROPER IDENTIFICATION AND
NOTICE OF ELIGIBILITY CHANGES:
A. An eligible
recipient is responsible for presenting a current MAP eligibility card and
evidence of any other health insurance to a MAD provider each time service is
requested.
(1) An
eligible recipient is responsible for any financial liability incurred if he or
she fails to furnish current MAP eligibility identification before the receipt
of a service and as a result the provider fails to adhere to MAD rules, such as
a failure to request prior approval. If
this omission occurs, the settlement of claims for services is between the
eligible recipient and the provider. An
individual is financially responsible for services received if he or she was
not eligible for MAD services on the date services are furnished.
(2) When
a provider bills MAD and the claim is denied, the provider cannot bill the
eligible recipient. Exceptions exist for
denials caused by MAP ineligibility or by an eligible recipient's failure to
furnish MAP identification in a timely manner.
(3) If
an eligible recipient fails to notify the provider that he or she has received
services that are limited by time or amount, the eligible recipient is
responsible for payment of the service prior to rendering the service if the
provider made reasonable efforts to verify whether the eligible recipient has
already received services.
B. Notification of providers following
retroactive eligibility determinations:
If an eligibility determination is made, the eligible recipient is
responsible for notifying MAD providers of this eligibility determination. When an individual receives retro MAP
eligibility, the now-eligible recipient must notify all of his or her MAD
providers of his or her change of eligibility.
If the eligible recipient fails to notify the provider and the provider
can no longer file a claim for reimbursement, the eligible recipient becomes
the responsible payer for those services.
C. Notification if an eligible recipient has
private insurance: If an eligible
recipient is covered under a private health insurance policy or health plan, he
or she is required to inform his or her MAD providers of the private health
coverage, including applicable policy numbers and special claim forms.
[8.200.430.15 NMAC -
Rp, 8.200.430.15 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.16 ELIGIBLE RECIPIENT FINANCIAL
RESPONSIBILITIES:
A. A MAD provider
agrees to accept the amount paid as payment in full. A provider cannot bill an eligible recipient
for any unpaid portion of the bill (balance billing) or for a claim that is not
paid because of a provider administrative error or failure of multiple
providers to communicate eligibility information.
(1) An
eligible recipient is responsible for any financial liability incurred if he or
she fails to furnish current MAP eligibility identification before the receipt
of a MAP service and as a result the provider fails to adhere to MAD
reimbursement rules, such as a failure to request prior approval. If this omission occurs, the settlement of
claims for services is between the eligible recipient and the MAP
provider. An individual is financially
responsible for services received if he or she was not eligible for MAD
services on the date services are furnished.
(2) When
a provider bills MAD and the claim is denied, the provider cannot bill the
eligible recipient. Exceptions exist for
denials caused by MAP ineligibility or by an eligible recipient's failure to
furnish MAP identification at the time of service.
(3) If
an eligible recipient fails to notify a provider that he or she has received
services that are limited by time or amount, the eligible recipient is
responsible to pay for services if, before furnishing the services, the
provider makes reasonable efforts to verify whether the eligible recipient has
already received services.
B. Failure of an eligible recipient to follow
his or her privately held health insurance carrier’s requirements: An eligible recipient must be aware of the
physician, pharmacy, hospital, and other providers who participate in his or
her HMO or other managed care plan. An
eligible recipient is responsible for payment for services if he or she uses a
provider who is not a participant in his or her plan or if he or she receives
any services without complying with the rules, policies, and procedures of his
or her plan.
C. Other eligible recipient payment
responsibilities: If all the
following conditions are met before a MAD service is furnished, the eligible
recipient can be billed directly by a MAD provider for services and is liable
for payment:
(1) the
eligible recipient is advised by a provider that the particular service is not
covered by MAD or is advised by a provider that he or she is not a MAD
provider;
(2) the
eligible recipient is informed by a provider of the necessity, options, and
charges for the services and the option of going to another provider who is a
MAD provider; and
(3) the
eligible recipient agrees in writing to have the service provided with full
knowledge that he or she is financially responsible for the payment.
[8.200.430.16 NMAC -
Rp, 8.200.430.16 NMAC, 1/1/2014; A, 10/15/2014; A, 10/1/2017; A, 2/1/2020]
8.200.430.17 RESTITUTION:
A. A MAP eligible
recipient must return overpayments or medical payments received from liable
third parties to the applicable medical service provider or to MAD. If payments are not returned or received,
recoupment proceedings against the eligible recipient will be initiated.
B. The restitution
bureau of HSD is responsible for the tracking and collection of overpayments
made to MAP eligible recipients, vendors, and MAD providers. See Section OIG-940, RESTITUTIONS. The MAD third party liability unit is
responsible for monitoring and collecting payments received from liable third
parties. See 8.302.3 NMAC.
[8.200.430.17 NMAC -
Rp, 8.200.430.17 NMAC, 1/1/2014; A, 10/15/2014]
8.200.430.18 REPORTING REQUIREMENTS: A
medicaid eligible recipient is required to report certain changes which might
affect his or her eligibility to ISD within 10 calendar days from the date the
change occurred. A timely change that is
reported within 10 calendar days that may result in a more beneficial medicaid
eligibility category shall be evaluated in the month the change occurred. An untimely change that is reported after 10
calendar days that may result in a more beneficial medicaid eligibility
category shall be evaluated in the month the change was reported. A reported change that does not result in the
same or a more beneficial medicaid category is considered an adverse action and
is applied prospectively in accordance with 8.100.180.10 NMAC. See 8.100.110.9 NMAC for the various ways
applicants and recipients can submit changes to the HSD. The following changes
must be reported to ISD:
A. Living arrangements or change of address: Any change in where an eligible recipient
lives or gets his or her mail must be reported.
B. Household size: Any change in the household size must be
reported. This includes the death of an
individual included in the either or both the assistance unit and budget group.
C. Enumeration: Any new social security number must be
reported.
D. Income: Except for continuous eligibility in
8.200.400 NMAC any increase or decrease in the amount of income or change in
the source of income must be reported.
E. Resource: Resources only apply to non-modified adjusted
gross income (MAGI) medicaid categories.
Any change in what an eligible recipient owns must be reported. This includes any property the eligible
recipient owns or has interest in, cash on hand, money in banks or credit
unions, stocks, bonds, life insurance policies or any other item of value.
[8.200.430.18 NMAC -
Rp, 8.200.430.18 NMAC, 1/1/2014; A, 2/14/2014; 8.200.430.18 NMAC - Rn & A,
8.200.430.19 NMAC, 10/15/2014; A, 10/1/2017]
8.200.430.19 MAD ESTATE RECOVERY: HSD
is mandated to seek recovery from the estates of certain individuals up to the
amount of medical assistance payments made by the HSD on behalf of the
individual. See Social Security Act
Section 1917 (42 USC 1396p(b) and Section 27-2A-1 et seq., NMSA 1978
"Medicaid Estate Recovery Act").
A. Definitions used in MAD estate recovery:
(1) Authorized
representative: The individual
designated to represent and act on the eligible recipient’s behalf. The eligible recipient or authorized
representative must provide formal documentation authorizing the named
individual or individuals to access the identified case information for a
specified purpose and time frame. An
authorized representative may be an attorney representing a person or
household, a person acting under the authority of a valid power of attorney, a
guardian, or any other individual or individuals designated in writing by the
member.
(2) Estate: Real and personal property and other assets
of an individual subject to probate or administration pursuant to the New
Mexico Uniform Probate Code.
(3) Medical
assistance: Amounts paid by HSD for long
term care services including related hospital and prescription drug services.
B. Basis for
defining the group: A MAP eligible
recipient who was 55 years of age or older when medical assistance payments
were made on his or her behalf for nursing facilities services, home and
community based services, and related hospital and prescription drug services
are subject to estate recovery.
C. The following exemptions apply to estate
recovery:
(1) Qualified
medicare beneficiaries, specified low-income beneficiaries, qualifying
individuals, and qualified disabled and working individuals, are exempt from
estate recovery for the receipt of hospital and prescription drug services
unless they are concurrently in a MAP nursing facility category of eligibility
or on a home and community based services waiver; this provision applies to
medicare cost-sharing benefits (i.e., Part A and Part B premiums, deductibles,
coinsurance, and co-payments) paid under the medicare savings programs.
(2) Certain
income, resources, and property are exempted from MAD estate recovery for
native Americans:
(a) interest
in and income derived from tribal land and other resources held in trust status
and judgment funds from the Indian claims commission and the United States
claims court;
(b) ownership
interest in trust or non-trust property, including real property and
improvements;
(i) located
on a reservation or near a reservation as designated and approved by the bureau
of Indian affairs of the U.S, department of interior; or
(ii) for
any federally-recognized tribe located within the most recent boundaries of a
prior federal reservation; and
(iii) protection
of non-trust property described in Subparagraphs (a) and (b) is limited to
circumstances when it passes from a native American to one or more relatives,
including native Americans not enrolled as members of a tribe and non-native
Americans such as a spouse and step-children, that their culture would
nevertheless protect as family members; to a tribe or tribal organization; or
to one or more native Americans;
(c) income
left as a remainder in an estate derived from property protected in Paragraph
(2) above, that was either collected by a native American, or by a tribe or
tribal organization and distributed to native Americans that the individual can
clearly trace the income as coming from the protected property;
(d) ownership
interests left as a remainder in an estate in rents, leases, royalties, or
usage rights related to natural resources resulting from the exercise of
federally-protected rights, and income either collected by a native American,
or by a tribe or tribal organization and distributed to native Americans
derived from these sources as long as the individual can clearly trace the
ownership interest as coming from protected sources; and
(e) ownership
interest in or usage of rights to items, not covered by Subparagraphs (a)
through (d) above, that have unique religious, spiritual, traditional, or
cultural significance or rights that support subsistence or a traditional
lifestyle according to applicable tribal law or custom.
D. Recovery process: Recovery from an eligible recipient's estate
will be made only after the death of the eligible recipient's surviving spouse,
if any, and only at a time that the eligible recipient does not have surviving
child who is less than 21 years of age, blind, or who meet the SSA definition
of disability.
(1) Estate
recovery is limited to payments for applicable services received on or after
October 1, 1993; except that recovery also is permitted for pre-October 1993
payments for nursing facility services received by a MAP recipient who was 65
years of age or older when such nursing facility services were received.
(2) A
recovery notice will be mailed to the authorized representative or next of kin
upon the eligible recipient’s death informing him or her about the amount of
claim against the estate and provide information on hardship waivers and
hearing rights.
(3) It
is the family or authorized representative’s responsibility to report the
eligible recipient’s date of death to the ISD office within 10 calendar days
after the date of death.
E. Eligible recipient rights and
responsibilities:
(1) At
the time of application or re-certification, the authorized representative must
be identified or confirmed by the applicant or eligible recipient or his or her
designee.
(2) Information
explaining estate recovery will be furnished to the applicant or eligible
recipient, his or her personal representative, or designee during the
application or re-certification process.
Upon the death of the MAP eligible recipient, a notice of intent to
collect (recovery) letter will be mailed to the eligible recipient’s personal
representative with the total amount of claims paid by MAD on behalf of the
eligible recipient. The authorized
representative must acknowledge receipt of this letter in the manner prescribed
in the letter within 30 calendar days of the date on the letter.
(3) During
the application or re-certification process for] MAP eligibility, the local
county ISD office
will identify the assets of an applicant or the eligible recipient. This includes all real and personal property
which belongs in whole or in part to the applicant or eligible recipient and
the current fair market value of each asset.
Any known encumbrances on the asset should be identified at this time by
the applicant or the eligible recipient or his or her authorized representative.
(4) MAD,
or its designee, will send notice of recovery to the probate court, when
applicable, and to the eligible recipient’s authorized representative or
successor in interest. The notice will
contain the following information:
(a) statement
describing the action MAD, or its designee, intends to take;
(b) reasons
for the intended action;
(c) statutory
authority for the action;
(d) amount
to be recovered;
(e) opportunity
to apply for the undue hardship waiver;
(f) procedures
for applying for a hardship waiver and the relevant timeframes involved;
(g) explanation
of the eligible recipient’s personal representative's right to request a HSD
administrative hearing; and
(h) the
method by which an affected person may obtain a HSD administrative hearing and
the applicable timeframes involved.
(5) Once
notified by MAD, or its designee, of the decision to seek recovery, it is the
responsibility of the eligible recipient's authorized representative or
successor in interest to notify other individuals who would be affected by the
proposed recovery.
(6) The
authorized representative will:
(a) remit
the amount of medical assistance payments to HSD or its designee;
(b) apply
for an undue hardship waiver; (see Paragraph (2) of Subsection F below); or
(c) request
an administrative hearing.
F. Waivers:
(1) For
a general waiver, HSD may compromise, settle, or waive recovery pursuant to the
Medicaid Estate Recovery Act if it deems that such action is in the best
interest of the state or federal government.
(2) Hardship
provision: HSD, or its designee, may
waive recovery because recovery would work an undue hardship on the heirs. The following are deemed to be causes for
hardship:
(a) the
deceased recipient's heir would become eligible for a needs-based assistance
program such as medicaid or temporary assistance to needy families (TANF) or be
put at risk of serious deprivation without the receipt of the proceeds of the
estate;
(b) the
deceased eligible recipient's heir would be able to discontinue reliance on a
needs-based program (such as medicaid or TANF) if he or she received the
inheritance from the estate;
(c) the
deceased recipient’s assets which are subject to recovery are the sole income
source for the heir;
(d) the
homestead is worth 50 percent or less than the average price of a home in the
county where the home is located based on census data compared to the property
tax value of the home; or
(e) there
are other compelling circumstances as determined by HSD or its designee.
[8.200.430.19 NMAC -
N, 1/1/2014; 8.200.430.19 NMAC - Rn & A, 8.200.430.20 NMAC, 10/15/2014]
8.200.430.20 [RESERVED]
[8.200.430.20 NMAC - N, 1/1/2014; Repealed, 10/15/2014]
HISTORY OF
8.200.430 NMAC: The material in this part was derived from
that previously filed with the State Records Center:
8 NMAC 4.MAD.430,
Recipient Policies, Recipient Rights and Responsibilities, filed 12/30/1994.
History of
Repealed Material:
8.200.430 NMAC,
Recipient Rights and Responsibilities, filed 12/13/2000 - Repealed effective 1/1/2014.