Public Laws, 1st Regular Session of the 122nd

PUBLIC LAWS
First Regular Session of the 122nd

PART DDD

Sec. DDD-1. 18-A MRSA §3-306, as amended by PL 1979, c. 690, §5, is further amended to read:

§3-306. Informal probate; notice requirements

The moving party ~~must~~ shall give notice as described by section 1-401 of ~~his~~ the moving party's application for informal probate to any person demanding it notice pursuant to section 3-204, to an heir, devisee or personal representative who has not waived notice in a writing filed with the court, and to any personal representative of the ~~decendent~~ decedent whose appointment has not been terminated. If the decedent was 55 years of age or older, the moving party shall give notice as described in section 1-401 to the Department of Health and Human Services. No other notice of informal probate is required.

Sec. DDD-2. 18-A MRSA §3-310, as amended by PL 1979, c. 690, §6, is further amended to read:

§3-310. Informal appointment proceedings; notice requirements

     The moving party ~~must~~ shall give notice as described by section 1-401 of ~~his~~ the moving party's intention to seek an appointment informally: (1) to any person demanding it notice pursuant to section 3-204; (2) to an heir or devisee, who has not waived notice in a writing filed with the court; and (3) to any person having a prior or equal right to appointment not waived in writing and filed with the court. If the decedent was 55 years of age or older, the moving party shall give notice as described in section 1-401 to the Department of Health and Human Services. No other notice of an informal appointment proceeding is required.

     Sec. DDD-3. 18-A MRSA §3-403, sub-§(a), as enacted by PL 1979, c. 540, §1, is amended to read:

     (a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice ~~shall~~ must be given in the manner prescribed by section 1-401 by the petitioner to the persons ~~herein~~ enumerated in this subsection and to any additional person who has filed a demand for notice under section 3-204.

     Notice ~~shall~~ must be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. If the decedent was 55 years of age or older, the petitioner shall give notice as described in section 1-401 to the Department of Health and Human Services. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.

     Sec. DDD-4. 18-A MRSA §5-408, sub-§(6) is enacted to read:

     (6) The court may authorize a gift or other transfer for less than fair market value from the protected person's estate other than to the protected person's spouse or dependent, blind or disabled child if the court finds that the gift or other transfer will not, directly or indirectly, diminish the protected person's estate in order to qualify for federal or state aid or benefits, including the MaineCare program under Title 22, chapter 855, and the court finds:

(a) That the remaining estate assets of the protected person are sufficient for the protected person's care and maintenance for the next 36 months, including due provision for the protected person's established standard of living and for the support of any persons the protected person is legally obligated to support and any dependents of the protected person; and
(b) That the gift or other transfer will not hasten the date of eligibility for MaineCare coverage of the protected person's long-term care expenses during the next 36 months.

This subsection does not prevent a transfer to a trust established pursuant to 42 United States Code, Section 1396p(d)(4) or otherwise specifically allowed by law governing the federal Medicaid program under 42 United States Code.

     Sec. DDD-5. 18-A MRSA §5-409, sub-§(b), as enacted by PL 1979, c. 540, §1, is amended to read:

     (b) ~~When~~ If it has been established in a proper proceeding that a basis exists as described in section 5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct or ratify any contract, trust or other transaction relating to the protected person's financial affairs or involving ~~his~~ the protected person's estate if the court determines that the transaction is in the best interests of the protected person, subject to the provisions of subsection (d).

     Sec. DDD-6. 18-A MRSA §5-409, sub-§(d) is enacted to read:

     (d) The court may authorize a gift or other transfer for less than fair market value from the protected person's estate other than to the protected person's spouse or dependent, blind or disabled child if the court finds that the gift or other transfer will not, directly or indirectly, diminish the protected person's estate in order to qualify for federal or state aid or benefits, including the MaineCare program under Title 22, chapter 855, and the court finds:

(1) That the remaining estate assets of the protected person are sufficient for the protected person's care and maintenance for the next 36 months, including due provision for the protected person's established standard of living and for the support of any persons the protected person is legally obligated to support and any dependents of the protected person; and
(2) That the gift or other transfer will not hasten the date of eligibility for MaineCare coverage of the protected person's long-term care expenses during the next 36 months.

     Sec. DDD-7. 18-A MRSA §5-425, sub-§(b), as enacted by PL 1979, c. 540, §1, is amended to read:

     (b) If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts ~~which~~ that do not exceed in total for any year 20% of the income from the estate, subject to the provisions of subsection (b-1).

     Sec. DDD-8. 18-A MRSA §5-425, sub-§(b-1) is enacted to read:

     (b-1) The court may authorize a gift or other transfer for less than fair market value from the protected person's estate other than to the spouse or dependent, blind or disabled child if the court finds that the gift or other transfer will not, directly or indirectly, diminish the protected person's estate in order to qualify for federal or state aid or benefits, including the MaineCare program under Title 22, chapter 855, and the court finds:

Sec. DDD-9. 22 MRSA §14, sub-§2-I, as amended by PL 2003, c. 20, Pt. K, §2, is further amended to read:

2-I. Claims against estates of MaineCare recipients. Claims against the estates of MaineCare recipients are governed by this subsection.

A. The department has a claim against the estate of a MaineCare recipient when, after the death of the recipient:

(1) Property or other assets are discovered that existed and were owned by the recipient during the period when MaineCare benefits were paid for the recipient and disclosure of the property or assets at the time benefits were being paid would have rendered the recipient ineligible to receive the benefits;
(2) It is determined that the recipient was 55 years of age or older when that person received MaineCare assistance; or
(3) It is determined that the recipient has received or is entitled to receive benefits under a long-term care insurance policy in connection with which assets or resources are disregarded and medical assistance was paid on behalf of the recipient for nursing facility or other long-term care services.

B. The amount of MaineCare benefits paid and recoverable under this subsection is a claim against the estate of the deceased recipient.

(1) As to assets of the recipient included in the probated estate, this claim may be enforced pursuant to Title 18-A, Article 3, Part 8.
(2) As to assets of the recipient not included in the probated estate, this claim may be enforced by filing a claim in any court of competent jurisdiction.

C. A Except for a claim collected through a voluntary payment arrangement under paragraph C-2, a claim may not be made under paragraph A, subparagraph (2) or (3) until:

(1) The recipient has no surviving spouse; and
(2) The recipient has no surviving child who is under age 21 or who is blind or permanently and totally disabled as defined in 42 United States Code, Section 1382c.

C-1. If a claim under this subsection is delayed pursuant to paragraph C, the provisions of this paragraph apply to any recovery under paragraph C.

(1) The following assets are exempt from recovery:

(a) The first $100,000 in value of the estate; and
(b) The value of any asset of the recipient, including the value of the primary residence, that passed to the surviving spouse and was later transferred by the spouse for the sole benefit of a child who is blind or permanently and totally disabled as defined in 42 United States Code, Section 1382c.

(2) The amount of MaineCare benefits paid and recoverable under this subsection is a claim against the estate of the spouse or the estate of the child if that person received any asset for less than fair market value from the recipient while the recipient was receiving MaineCare benefits or from the estate of the recipient.
(3) A claim under this paragraph is enforceable as to the value of the asset on the date the asset was received by the spouse or child, less any value actually transferred to the recipient. The amount of the claim is not decreased by the fact that the asset has been lost, diminished, sold, encumbered, transferred or the title otherwise adversely affected after the date of receipt by the spouse or child.

C-2. The department shall provide heirs, assignees or transferees of a deceased recipient an opportunity to pay a claim under this subsection through a voluntary payment arrangement that is acceptable to the department. The payment arrangement may consist of a payment plan, promissory note or other payment mechanism.
D. Paragraph A, subparagraphs (2) and (3) apply only to a recipient who died on or after October 1, 1993 for MaineCare payments made on or after October 1, 1993.
E. A claim under paragraph A, subparagraph (2) must be waived if enforcement of the claim would create an undue hardship under criteria developed by the department or if the costs of collection are likely to exceed the amount recovered. A waiver may be granted in full or in part. A waiver may not be granted if the recipient or waiver applicant acted to lose, diminish, divest, encumber or otherwise transfer any value of or title to an asset for the purpose of preventing recovery under this subsection.
F. As used in this subsection, unless the context otherwise indicates, the term "estate" means:

(1) All real and personal property and other assets included in the recipient's estate, as defined in Title 18-A, section 1-201; and
(2) Any other real and personal property and other assets in which the recipient had any legal interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the deceased recipient through tenancy in common, survivorship, life estate, living trust, joint tenancy in personal property or other arrangement.

G. The department may accept, hold, transfer title to and sell real property to collect a claim under this subsection. The department may receive title to real property from a personal representative, special or public administrator, creditor, heir, devisee, assignee or transferee in full or partial satisfaction of a claim under this subsection.

Sec. DDD-10. 22 MRSA §3174-GG is enacted to read:

§3174-GG. Long-term Care Partnership Program

     There is established within the department the Long-term Care Partnership Program, referred to in this section as "the program," to provide incentives for persons to insure the costs of their own long-term care and to alleviate some of the costs of long-term care being paid by MaineCare. The department shall administer the program as a part of MaineCare, contingent upon federal Medicaid participation, beginning 3 months after the federal Omnibus Budget Reconciliation Act of 1993 is amended to allow new state partnership programs.

     1. Eligibility. A person is eligible for the program if that person has purchased a policy of long-term care insurance approved for the purpose of the program and then has used the policy alone or in combination with private resources to pay for long-term care costs at the nursing facility level of care, without resort to MaineCare coverage, for a period of time specified by the program. In order to qualify for benefits under the program, a person must be eligible under this subsection and meet the other criteria required for long-term care benefits under the MaineCare program as provided in this chapter and in rules adopted by the department.

     2. Benefits. The benefits of the program include coverage under MaineCare for long-term care at the nursing facility level of care after the person participating in the program has exhausted the coverage and benefits purchased under the approved long-term care policy.

     3. Disregard. In addition to assets disregarded or exempt under MaineCare program rules, in determining eligibility for MaineCare and the amount of MaineCare benefits and in estate recovery pursuant to section 14, subsection 2-I, the program must disregard assets of an eligible person that are disclosed to the department in the application process in an amount equal to the benefits paid by the approved long-term care insurance policy for nursing facility level of care.

     4. Information. In cooperation with the Department of Professional and Financial Regulation, Bureau of Insurance, the department shall provide information to the public regarding the program and approved long-term care insurance policies.

     5. Reciprocal agreements. The department shall enter into reciprocal agreements with other states to extend the program to persons who purchased long-term care insurance policies equivalent to policies approved in this State and to extend similar programs in other states to persons who purchase approved policies in this State and who later relocate and apply for Medicaid long-term care benefits in other states.

     6. Other laws. Eligibility for the program does not preclude enforcement of laws regarding recovery of MaineCare benefits incorrectly paid or 3rd-party liability claims by the department. The provisions of this section do not enlarge or otherwise modify medical assistance benefits under the MaineCare program. The provisions of section 14, subsection 2-I, paragraph A, subparagraph (3) do not apply to assets disregarded under the program.

     7. Rulemaking. The department, after consultation with the Superintendent of Insurance within the Department of Professional and Financial Regulation, shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

     Sec. DDD-11. Public information regarding estate recovery in MaineCare. After consultation with interested parties and advocates and before January 1, 2006, the Department of Health and Human Services shall prepare and distribute a brochure describing the requirements of the estate recovery program of the Maine Revised Statutes, Title 22, section 14 in clear and easily understandable language.

     1. The brochure must describe the estate recovery program and include the criteria for a hardship waiver, answers to frequently asked questions and a toll-free telephone number for further information.

     2. The department shall provide the brochure to all new MaineCare applicants 50 years of age or older, responsible parties for applicants 50 years of age or older at the time of application for benefits or renewal of benefits and to all personal representatives of deceased persons whom the department determines may be subject to the estate recovery provisions.

     3. The department shall make the brochure available to the general public, to the area agencies on aging and to the Probate Courts and shall post the brochure on its Internet website.

     4. Failure of the department to provide the brochure as described in this section does not invalidate any claim that the department may have under Title 22, section 14.

     Sec. DDD-12. Rules regarding rate of income production in MaineCare. The Department of Health and Human Services shall adopt rules governing MaineCare eligibility that provide that income-producing property owned by a MaineCare recipient is considered a countable asset unless the property produces an annual rate of return that equals or exceeds the average annual rate of return available from banking or savings institutions within the State for deposits of similar value in readily available government-insured instruments.

     1. The department shall annually survey banking and savings institutions and establish the average rate of return.

     2. The rules may not count property as a resource if:

A. The property cannot be used due to circumstances reasonably beyond the control of the individual;
B. The owner is making good faith efforts to sell the property at a reasonable price; or
C. The property cannot be used due to the inability of the individual to use the property for up to 24 months.

     Rules adopted under this section are routine technical rules pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A and apply only to transactions occurring on or after July 1, 2005.

     Sec. DDD-13. Penalty regarding transfers of assets in MaineCare. The Department of Health and Human Services shall adopt rules governing MaineCare eligibility that impose a penalty for the transfer of any asset for less than fair market value to anyone other than a spouse or dependent, blind or disabled child.

     1. The rules must provide that, when the value of the asset is less than or equal to the average monthly cost to a private patient in a nursing facility, the penalty must be in the form of a one-month disqualification from MaineCare eligibility for nursing facility or waiver coverage.

     2. The rules must provide for penalties for more than one month calculated by comparison of the value of the asset transferred to the cost per month of private patient care, using a rounding up method for the value of a partial month.

     3. The rules may not prevent a transfer to a trust established pursuant to 42 United States Code, Section 1396p(d)(4) or otherwise specifically allowed by law governing the federal Medicaid program under 42 United States Code.

     4. The rules may not penalize the recipient for making irregular and infrequent gifts, provided the cumulative amount of the gifts does not exceed $500 per calendar quarter.

     5. By January 1, 2006, the department shall amend the rule on penalties for transfers of assets to reflect the current average monthly cost to a private-pay patient in a nursing facility.

     6. The department shall annually survey nursing homes within the State and establish the average monthly cost to a private patient in a nursing facility in the State or, at the option of the department, in the community in which the individual is institutionalized at the time of application.

     Rules adopted under this section are routine technical rules pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A and apply only to transactions occurring on or after July 1, 2005.

     Sec. DDD-14. Calculation of community spouse allowance in MaineCare. The Department of Health and Human Services shall adopt rules that require, in determining eligibility for MaineCare long-term care coverage and calculating the minimum monthly maintenance needs allowance of the recipient's or applicant's spouse that lives in the community, called in this section "the community spouse," the use of the income-first method. Using the income-first method, the rules must provide that the income of the recipient or applicant that could be made available to support the community spouse is allocated to the community spouse for purposes of the minimum monthly maintenance needs allowance. The rules may not increase the community spouse's resource allowance unless the community spouse's income does not meet the minimum monthly maintenance needs allowance after taking into account any income that may be made available from the applicant or recipient.

     Rules adopted under this section are routine technical rules pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A and apply only to transactions occurring on or after July 1, 2005.

     Sec. DDD-15. Certain annuity contracts as countable assets in MaineCare. The Department of Health and Human Services shall adopt rules for MaineCare eligibility purposes that count as an asset the value of an irrevocable contract of annuity insurance purchased by an applicant or recipient unless the contract:

     1. Names as the only beneficiary the recipient or applicant or that person's community spouse or dependent, blind or disabled child;

     2. Prohibits a residual beneficiary, other than a dependent or disabled child, in the event the spouse dies before the payout period ends; and

     3. Provides no benefit to the spouse or dependent or disabled child other than a regular stream of income in equal payments over a period no longer than the spouse's life expectancy determined at the time of purchase, as established by the life expectancy tables published by the federal Centers for Medicare and Medicaid Services or other appropriate federal agencies identified by the department.

     These rules do not displace the provisions of the Maine Revised Statutes, Title 24-A, section 2428, exempting from claims of creditors the proceeds of a contract of annuity insurance. The department is authorized to count as an available asset for MaineCare eligibility the value of any contract of annuity insurance that does not qualify for exclusion as described in Title 24-A, section 2428.

     The department shall send notice to producers of long-term care insurance explaining the laws and rules that take effect on July 1, 2005.

     Rules adopted under this section are routine technical rules pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A and apply only to transactions occurring on or after July 1, 2005.

     Sec. DDD-16. Determination of long-term care insurance and eligibility for MaineCare. The Department of Health and Human Services shall adopt rules regarding eligibility for MaineCare benefits that, contingent upon federal Medicaid participation, allow the transfers of assets in exchange for the purchase of long-term care insurance. With regard to an asset that was transferred within 36 months of an application for MaineCare, or within 60 months in the case of a transfer to a qualifying Medicaid trust, the rule must deem that asset to be transferred for fair market value or for a purpose other than to qualify for MaineCare if, in exchange for the transfer, the transferee purchased a policy of long-term care insurance approved by the Superintendent of Insurance within the Department of Professional and Financial Regulation that was sufficient, alone or in combination with private resources, to provide fully for the care of the transferor at the nursing facility level for at least 36 months without resort to MaineCare coverage. Nothing in this section or in rules adopted pursuant to this section precludes recovery of MaineCare benefits incorrectly paid or 3rd-party liability claims by the department. The provisions of this section do not enlarge or otherwise modify medical assistance benefits under the MaineCare program. The Superintendent of Insurance shall adopt rules regarding approved policies for long-term care insurance for the purposes of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

     Sec. DDD-17. Application. The following sections of this Part apply to Probate Court proceedings occurring after July 1, 2005: the section that amends the Maine Revised Statutes, Title 18-A, section 3-306; amends Title 18-A, section 3-310; amends Title 18-A, section 3-403, subsection (a); amends Title 18-A, section 5-408, subsection (6); amends Title 18-A, section 5-409, subsection (b); enacts Title 18-A, section 5-409, subsection (d); amends Title 18-A, section 5-425, subsection (b); and enacts Title 18-A, section 5-425, subsection (b-1). That section of this Part that amends Title 22, section 14, subsection 2-I applies to assets received by the MaineCare recipient's spouse or child on or after July 1, 2005.

     Sec. DDD-18. Appropriations and allocations. The following appropriations and allocations are made.

ATTORNEY GENERAL, DEPARTMENT OF THE
Human Services Division 0696
Initiative: Establishes one Assistant Attorney General to be funded 50% from the General Fund and 50% from the Federal Expenditures Fund for Medicaid estate recovery.
GENERAL FUND 2005-06 2006-07

POSITIONS -
LEGISLATIVE COUNT     1.000     1.000
Personal Services     $43,412     $46,541
All Other     $2,400     $900

__________ __________

GENERAL FUND TOTAL $45,812 $47,441

FEDERAL EXPENDITURES FUND 2005-06 2006-07

Personal Services $43,407 $46,534
All Other $3,190 $3,344

__________ __________

FEDERAL EXPENDITURES
FUND TOTAL $46,597 $49,878

ATTORNEY GENERAL, DEPARTMENT OF THE
DEPARTMENT TOTALS 2005-06 2006-07

GENERAL FUND $45,812 $47,441
FEDERAL EXPENDITURES
FUND $46,597 $49,878

__________ __________

DEPARTMENT TOTAL -
ALL FUNDS $92,409 $97,319

HEALTH AND HUMAN SERVICES, DEPARTMENT OF
(FORMERLY DHS)
Bureau of Medical Services 0129
Initiative: Establishes one Paralegal position and 2 Medical Care Coordinator positions to assist in the recovery of assets from estates of persons who have used MaineCare services, resulting in savings in the Medical Care - Payments to Providers and Nursing Facilities programs.
GENERAL FUND 2005-06 2006-07

POSITIONS -
LEGISLATIVE COUNT 1.000 1.000
Personal Services $78,120 $83,893

__________ __________

GENERAL FUND TOTAL $78,120 $83,893

FEDERAL EXPENDITURES FUND 2005-06 2006-07

POSITIONS -
LEGISLATIVE COUNT     2.000     2.000
Personal Services     $78,122     $83,898
All Other     $2,305     $2,476

__________ __________

FEDERAL EXPENDITURES
FUND TOTAL $80,427 $86,374

Medical Care - Payments to Providers 0147
Initiative: Establishes one Paralegal position and 2 Medical Care Coordinator positions to assist in the recovery of assets from estates of persons who have used MaineCare services, resulting in savings in the Medical Care - Payments to Providers and Nursing Facilities programs.
GENERAL FUND 2005-06 2006-07

All Other ($541,419) ($1,544,086)

__________ __________

GENERAL FUND TOTAL ($541,419) ($1,544,086)

FEDERAL EXPENDITURES FUND 2005-06 2006-07

All Other ($1,013,043) ($2,889,121)

__________ __________

FEDERAL EXPENDITURES
FUND TOTAL ($1,013,043) ($2,889,121)

Nursing Facilities 0148
Initiative: Establishes one Paralegal position and 2 Medical Care Coordinator positions to assist in the recovery of assets from estates of persons who have used MaineCare services, resulting in savings in the Medical Care - Payments to Providers and Nursing Facilities programs.
GENERAL FUND 2005-06 2006-07

All Other ($1,182,513) ($3,187,248)

__________ __________

GENERAL FUND TOTAL ($1,182,513) ($3,187,248)

FEDERAL EXPENDITURES FUND 2005-06 2006-07

All Other ($2,212,586) ($5,963,622)

__________ __________

FEDERAL EXPENDITURES
FUND TOTAL ($2,212,586) ($5,963,622)

HEALTH AND HUMAN SERVICES, DEPARTMENT OF
(FORMERLY DHS)
DEPARTMENT TOTALS 2005-06 2006-07

GENERAL FUND ($1,645,812) ($4,647,441)
FEDERAL EXPENDITURES
FUND ($3,145,202) ($8,766,369)

__________ __________

DEPARTMENT TOTAL -
ALL FUNDS ($4,791,014) ($13,413,810)

SECTION TOTALS 2005-06 2006-07