The Rhode Island legislature recently amended its General Laws; seniors, elder law practitioners, and others working with seniors should take note. Although the laws have already taken effect, the Executive Office of Health and Human Services (EOHHS) hasn’t finalized the regulations and the DHS Policy Manual doesn’t yet reflect the changes—and naturally there is some confusion, even among the probate court judges. We will focus on the three changes most likely to affect the elder law community: liens against property includable in Medical Assistance recipients’ estates, whether or not a probate or administration is commenced; the new notice requirements in estates of all persons aged fifty-five or older; and the new notice requirements for persons receiving Medical Assistance who transfer property.
As you may know, the EOHHS places a lien on the probate estates of recipients of Medical Assistance, the RI program that pays for long-term nursing home care. In the past, this has generally meant that when the deceased recipient’s home is sold from his or her estate, the amount of money the state paid on behalf of the recipient is recovered. The new law modifies this to include all property of a recipient that is included or includable in a decedent’s estate, regardless of whether a probate proceeding is commenced. The lien shall also apply against the previously allowed $4,000 which is the medically needy standard. Apparently, the purpose of this change will allow the EOHHS more latitude to actually commence a probate and recover against the estates of deceased recipients whose heirs may be reluctant to petition for probate themselves.
The second important change affects all probate estates and administrations, including small estate petitions (currently valued at less than $15,000) of decedents who are fifty-five or older at the time of death. As of July 1, 2012 the following procedure must be followed: when a person who is fifty-five or older dies, a copy of the petition for admission to probate or the petition for administration of the estate must be sent to EOHHS along with a copy of the death certificate. If EOHHS requests additional information, the executor or administrator of the estate must comply within thirty days of the request. Furthermore, the change requires that the Affidavit of Notice to Creditors include EOHHS/Medicaid. This new change has some real teeth in it: if EOHHS does not receive the required notice and information, and the deceased person received Medical Assistance for which EOHHS is authorized to recover, the estate cannot be disbursed and administration fees cannot be paid. Moreover, if an unauthorized distribution is made, the person who receives a distribution is liable to EOHHS. Sending the notice earlier rather than later is probably the best practice, preferably in conjunction with notice that is sent to the decedent’s heirs at law. An elder law attorney who is abreast of changes in the law will help ensure that you are in compliance with the law and that distribution of the estate is not delayed unnecessarily.
The third change we will talk about only affects persons who are current recipients of Medical Assistance. As of July 1, 2012, when a person receiving Medical Assistance transfers an interest in real estate or personal property, the EOHHS must be notified within ten days. If you have made such a transfer, the law requires that you notify both your local office and the legal office of EOHHS with detailed information about the transfer. If notice is not properly given, any person or entity that knew or should have known that EOHHS was not notified and received any distribution of value in the transfer is liable to EOHHS to the extent of the value received in the transfer.
For a copy of a draft of the new regulations, please call or email us at moc.walredle104@ofni.