BILL NUMBER: SB 33 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 17, 2015
AMENDED IN SENATE MARCH 11, 2015
INTRODUCED BY Senator Hernandez
DECEMBER 1, 2014
An act to amend Section 14009.5 of the Welfare and Institutions
Code, relating to Medi-Cal.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, as amended, Hernandez. Medi-Cal: estate recovery.
Existing law provides for the Medi-Cal program, which is
administered by the State Department of Health Care Services and
under which qualified low-income persons receive health care
benefits. The Medi-Cal program is, in part, governed and funded by
federal Medicaid provisions.
Existing federal law requires the state to seek adjustment or
recovery from an individual's estate for specified medical
assistance, including nursing facility services, home and
community-based services, and related hospital and prescription drug
services, if the individual was 55 years of age or older when he or
she received the medical assistance. Existing federal law allows the
state, at its own option, to seek recovery for any items or services
covered under the state's Medicaid plan.
Existing state law, with certain exceptions, requires the
department to claim against the estate of a decedent, or against any
recipient of the property of that decedent by distribution or
survival, an amount equal to the payments for Medi-Cal services
received or the value of the property received by any recipient from
the decedent by distribution or survival, whichever is less. Existing
law provides for certain exemptions that restrict the department
from filing a claim against a decedent's property, including when
there is a surviving spouse during his or her lifetime. Existing law
requires the department, however, to make a claim upon the death of
the surviving spouse, as prescribed. Existing law requires the
department to waive its claim, in whole or in part, if it determines
that enforcement of the claim would result in a substantial hardship,
as specified. Existing law, which has been held invalid by
existing case law, provides that the exemptions shall only apply to
the proportionate share of the decedent's estate or property that
passes to those recipients, by survival or distribution, who qualify
for the exemptions.
This bill would instead require the department to make these
claims only in specified circumstances for those health care services
that the state is required to recover under federal law, and would
define health care services for these purposes. The bill would limit
any claims against the estate of a decedent to only the real and
personal property or other assets the state is required to seek
recovery from under federal law. The bill would delete the
proportionate share provision and would delete the requirement that
the department make a claim upon the death of the surviving spouse.
The bill would require the department to waive its claim when
the estate subject to recovery is a homestead of modest
value, as defined . The bill would also require the
department to provide a current or former beneficiary, or his or her
authorized representative, upon request and free of charge, with the
total amount of Medi-Cal expenses that have been paid on his or her
behalf that would be recoverable under these provisions, as
specified. The bill would apply the changes made by these provisions
only to individuals who die on or after January 1, 2016.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14009.5 of the Welfare and Institutions Code is
amended to read:
14009.5. (a) Notwithstanding any other provision of this chapter,
the department shall claim against the estate of the decedent, or
against any recipient of the property of that decedent by
distribution an amount equal to the payments for the health care
services received or the value of the property received by any
recipient from the decedent by distribution, whichever is less, only
in either of the following circumstances:
(1) Notwithstanding paragraph (2), against the real property of a
decedent who was an inpatient in a nursing facility in accordance
with Section 1396p(b)(1)(A) of Title 42 of the United States Code.
(2) (A) The decedent was 55 years of age or older when the
individual received health care services.
(B) The department shall not claim under this paragraph when there
is any of the following:
(i) A surviving spouse.
(ii) A surviving child who is under 21 years of age.
(iii) A surviving child who is blind or permanently and totally
disabled, within the meaning of Section 1614 of the federal Social
Security Act (42 U.S.C. Sec. 1382c).
(b) (1) The department shall waive its claim, in whole or in part,
if it determines that enforcement of the claim would result in
substantial hardship to other dependents, heirs, or survivors of the
individual against whose estate the claim exists.
(2) In determining the existence of substantial hardship, in
addition to other factors considered by the department consistent
with federal law and guidance, the department shall waive its claim
when the estate subject to recovery is a homestead of modest value.
(2)
( 3) The department shall notify individuals
of the waiver provision and the opportunity for a hearing to
establish that a waiver should be granted.
(c) (1) The department shall provide a current or former
beneficiary, or his or her authorized representative designated under
Section 14014.5, upon request and free of charge, with the total
amount of Medi-Cal expenses that have been paid on behalf of that
beneficiary that would be recoverable under this section.
(2) The department shall permit a beneficiary to request the
information described in paragraph (1) through the Internet, by
telephone, by mail, in person, or through other commonly available
electronic means.
(3) The department shall conspicuously post on its Internet Web
site, a description of the methods by which a request under this
subdivision may be made, including, but not limited to, the
department's telephone number and any addresses that may be used for
this purpose. The department shall also include this information in
its pamphlet for the Medi-Cal Estate Recovery Program and any other
notices the department distributes to beneficiaries regarding estate
recovery.
(4) Upon receiving a request for the information described in
paragraph (1), the department shall provide the information requested
within 30 days after receipt of the request.
(d) The following definitions shall govern the construction of
this section:
(1) "Decedent" means a beneficiary who has received health care
under this chapter or Chapter 8 (commencing with Section 14200) and
who has died leaving property to others either through distribution
or survival.
(2) "Dependents" includes, but is not limited to, immediate family
or blood relatives of the decedent.
(3) "Estate" means all real and personal property and other assets
that are required to be subject to a claim for recovery pursuant to
Section 1396p(b)(4)(A) of Title 42 of the United States Code. "Estate"
shall not include any other real and personal property or other
assets in which the individual had any legal title or interest at the
time of death, to the extent of that interest, including any assets
conveyed to a survivor, heir, or assign of the decedent through joint
tenancy, tenancy in common, survivorship, life estate, living trust,
or other arrangement, consistent with Section 1396p(b)(4)(B) of
Title 42 of the United States Code.
(4) "Health care services" means only those services required to
be recovered under Section 1396p(b)(1)(B)(i) of Title 42 of the
United States Code.
(5) "Homestead of modest value" means a home whose fair market
value is 50 percent or less of the average price of homes in the
county where the homestead is located, as of the date of the decedent'
s death.
(e) The amendments made to this section by the act that added this
subdivision shall apply only to individuals who die on or after
January 1, 2016.