Wyo. Code R. 048-0037-35
Medicaid
Chapter 35: Medicaid Benefit Recovery
Effective Date: 06/29/2018 to 10/22/2018
Rule Type: Expired Emergency Rules & Regulations
Reference Number: 048.0037.35.06292018
Section 1. Authority. This rule is promulgated by the Department of Health pursuant to the Medical Assistance and Services Act at W.S. 42-4-101 et seq. and the Wyoming Administrative Procedures Act at W.S. 16-3-101 et seq.
(a) This chapter shall apply to and govern all issues of Medicaid benefit recoveries. This Chapter shall become effective upon signature of the Governor, and filing with the Secretary of State.
(b) The Department may issue manuals or bulletins to providers, and other affected third parties to interpret the provisions of this Chapter. Such manuals or bulletins shall be consistent with and reflect the policies contained in this Chapter. The provisions contained in manuals or bulletins shall be subordinate to the provisions of the rules and regulations.
(a) This Chapter is intended to implement and to be read in conjunction with W.S. 42-4-114, 42-4-201 through 42-4-208, 42-4-122, and 14-2-1001 through 14-2-1008, and applicable federal law, including OBRA '90 and OBRA '93.
(b) Terminology. Except as otherwise specified, the terminology used in this Chapter is the standard terminology and has the standard meaning used in accounting, health care, Medicaid and Medicare.
(c) The incorporation by reference of any external standard is intended to be the incorporation of that standard as it is in effect on the effective date of this Chapter, including any applicable amendments, corrections, or revisions.
Section 4. Definitions. The following definitions shall apply in the interpretation and enforcement of these rules. Where the context in which words are used in these rules indicates that such is the intent, words in the singular number shall include the plural and vice versa. Throughout these rules gender pronouns are used interchangeably. The drafters have attempted to utilize each gender pronoun in equal numbers, in random distribution. Words in each gender include individuals of the other gender. For the purpose of these rules, the following shall apply:
(a) 'Adverse action.' 'Adverse action' as defined in Chapter 1, which definition is incorporated by this reference. 'Adverse action' shall not include the Department's decision about whether and/or how to recover pursuant to Section 8.
(b) 'Annuity.' As annuity is defined as a contract or agreement by which one receives fixed, non-variable payments on an investment for a lifetime or a specified number of years. An annuity containing a balloon payment (or lump sum payment) will be considered an available resource. A commercial (non-employment related) annuity purchased by or for an individual using that individual's assets will be considered an available resource unless it meets the following criteria. The annuity:
(i) Is irrevocable;
(ii) Pays out principal and interest in equal monthly installments (no balloon payment) to the individual in sufficient amounts that the principal is paid out within the actuarial life expectancy of the individual as published by the Centers for Medicare & Medicaid Services (CMS). The average number of years of expected life remaining for the individual must equal or exceed the stated life of the annuity;
(iii) Names the State of Wyoming, Department of Health, Office of Medicaid as the residual beneficiary of funds remaining in the annuity, not to exceed any Medicaid funds expended on the individual during his lifetime; and
(iv) Is issued by an insurance company licensed and approved to do business in the State of Wyoming.
If the individual is not reasonably expected to live longer than the guarantee period of the annuity, the individual will not receive fair market value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place. This will subject the individual to a penalty which is assessed based on a transfer of assets for less than fair market value that occurred at the time the annuity was purchased.
(c) 'Applicant.' A person who has submitted a written application for Medicaid, either directly or through a representative acting on his or her behalf, which has not received final action.
(d) 'Application.' An applicant's written request for Medicaid.
(e) 'Assets.' 'Assets' as defined by W.S. 42-2-401(a)(1).
(f) 'Assignment of benefits.' The transfer from an applicant or recipient to the Department of the applicant's or recipient's rights, or the rights of another, to medical support or payments for services from any third party payer.
(g) “Attorney General.” The Attorney General of the State of Wyoming, his agent, designee or successor.
(h) “Birth cost.” “Birth costs” as defined in W.S. 14-2-1002(a)(i), which is incorporated by reference.
(i) “Certified mail, return receipt requested.” Certified mail, return receipt requested as provided by the United States Postal Service, or delivery via a commercial delivery service which provides tracking of the communication and written documentation of its delivery. “Certified mail, return receipt requested” does not include communication by facsimile transmission, telephone, or e-mail.
(j) “Chapter 1.” Chapter 1, Rules for Medicaid Administrative Hearings, of the Wyoming Medicaid Rules.
(k) “Chapter 3.” Chapter 3, Provider Participation, of the Wyoming Medicaid Rules.
(l) “Claim.” A request by a provider for Medicaid payment for services provided to a recipient.
(m) “CMS.” The Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services, its agent, designee or successor.
(n) “Contract attorney.” A lawyer or law firm which has entered into a contract with the Department to assist in Medicaid benefit recovery, whether third party liability reimbursement or estate recovery, or both. Unless otherwise specified by the contract, a contract attorney shall be authorized to represent the Department in all matters related to the enforcement of the Department’s reimbursement rights pertaining to Medicaid benefit recovery, whether third party liability reimbursement or estate recovery.
(o) “Cost-effective.” The determination by the Department that the expected expenses of a recovery, including, but not limited to, administrative costs, attorney’s fees, court costs, costs of litigation, travel costs, expert fees and deposition expenses, are less than the expected amount of the recovery.
(p) “Costs.” Reasonable out-of-pocket costs incurred by an attorney in the prosecution of a right of recovery, including, but not limited to, court costs, costs of litigation, travel costs, expert witness fees and deposition expenses.
(q) “Department.” The Wyoming Department of Health, its agent, designee or successor.
(r) “DFS.” The Wyoming Department of Family Services, its agent, designee or successor.
(s) “Director.” The Director of the Department of Health, the director’s agent, designee or successor.
(t) “Estate.” “Estate” as defined by W.S. 42-4-206(g)(ii), which is incorporated by this reference.
(u) “Estate recovery.” The recovery under W.S. 42-4-206 and 42-4-207 from the estate of a deceased recipient or from the estate of the spouse of a deceased recipient for reimbursement of Medicaid payments made on behalf of a recipient.
(v) “Home.” A recipient’s primary residence at the time the recipient enters an institution.
(w) “HHS.” The United States Department of Health and Human Services, its agent, designee or successor.
(x) “Incentive allowance.” An allowance payment to the heirs, legatees or other person(s) with a valid claim to ownership of the deceased recipient’s assets who obtain title to the assets and who cooperate fully with the Department and/or its contract attorneys in maintaining and disposing of the assets so as to satisfy to the full extent possible the State’s reimbursement right.
(i) An incentive allowance shall be ten percent (10%) of the net proceeds from the sale of the asset(s), except that in no case shall an incentive allowance exceed a total of two-thousand ($2,000.00) dollars;
(ii) An incentive allowance shall be permitted only upon written agreement with the Department and/or its contract attorneys, and only if the Medicaid benefits paid on behalf of the recipient exceed the value of the assets sold; and
(iii) The net proceeds from the sale shall be determined by deducting from the sale price the costs of discharging any encumbrances on the property and other reasonable expenses incurred in maintaining or disposing of the asset(s).
(y) “Institution.” A hospital, nursing facility, intermediate care facility for the mentally retarded (ICF/MR) or any other provider which is an “institution” as defined by 42 C.F.R. 435.1009, which definition is incorporated by this reference.
(z) “Institutional provider.” An institution which is a Medicaid provider.
(aa) “Lien.” With respect to the property of a recipient, probate recoveries, or non-probate recoveries, the Department’s right to recover pursuant to W.S. 42-4-207(b), (c), or (j), from the recipient, the estate of a deceased recipient, or the estate of the spouse of a deceased recipient for Medicaid payments made on behalf of the recipient or the deceased recipient. With respect to third-party liability recovery, the Department’s right to recover pursuant to W.S. 42-4-202.
(bb) “Medicaid.” Medical assistance and services provided pursuant to Title XIX of the Social Security Act as amended, and/or the Wyoming Medical Assistance and Services Act, as amended. “Medicaid” includes any successor or replacement program enacted by Congress or the Wyoming Legislature.
(cc) “Medicaid benefit recovery.” The recovery under W.S. 42-4-201 through 42-4-207 for reimbursement of Medicaid funds paid on behalf of a recipient.
(dd) “Medicare.” The health insurance program for the aged and disabled established pursuant to Title XVIII of the Social Security Act.
(ee) “Medicare crossover claim.” A claim for services provided to a recipient who is eligible for Medicare and Medicaid.
(ff) “Non-probate estate.” That portion of a recipient’s estate or the estate of the spouse of a recipient which is not administered pursuant to the Wyoming Probate Code.
(gg) “OBRA ’90.” The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508.
(hh) OBRA ’93.” The Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66.
(ii) “Probate estate.” That portion of a recipient’s estate or the estate of the spouse of a recipient which is administered pursuant to the Wyoming Probate Code.
(jj) “Provider.” A provider as defined by Chapter 3, which definition is incorporated by this reference.
(kk) “Reasonable expenses incurred in preserving or disposing of the asset(s).” The following expenses incurred either in maintaining or disposing of the assets of a recipient’s estate distributed pursuant to the summary distribution provisions of W.S. 2-1-201 through 2-1-205:
(i) Closing costs for the sale of real property which results in the partial or complete satisfaction of the Department’s reimbursement right (closing costs include the reasonable attorney’s fees of the seller, the cost of title insurance, and recording costs);
(ii) Costs of a summary probate pursuant to W.S. 2-1-204;
(iii) An incentive allowance;
(iv) Property insurance premiums;
(v) Property taxes (real and/or personal); and (vi) Utility costs which are necessary to preserve the property.
(vii) Other costs incurred pursuant to a written property management agreement signed by the Department;
(viii) Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired;
(ix) Reasonable expenses:
(A) Must be documented and must have been paid after the recipient entered a nursing facility; and
(B) Shall not be allowable for any time during which another individual was residing in the home.
(ll) 'Recipient.' A person who has been determined eligible for Medicaid.
(mm) 'Recipient's gross recovery.' The total present value of a judgment or settlement arising out of a right of recovery.
(nn) 'Right of recovery.' The right or potential right of a recipient, or someone acting on behalf of a recipient, to recover from a third party payer.
(oo) 'Right of reimbursement' or 'reimbursement right.' The Department's right to recover pursuant to this Chapter for Medicaid benefits paid on behalf of a recipient. The right may be asserted and enforced by any means permitted by law to recover a debt.
(pp) 'Rules governing contingent fees.' The Rules Governing Contingent Fees for Members of the Wyoming State Bar, as promulgated by the Supreme Court, State of Wyoming.
(qq) 'Services.' Goods or services authorized for Medicaid payments under applicable federal law, W.S. 42-4-103 and the rules of the Department.
(rr) 'Settlement.' An agreement under which a third party payer agrees to make payment to a recipient or third party for an illness, injury, or disability which has required services for which the Department has made or is or becomes obligated to make Medicaid payments on behalf of the recipient.
(ss) 'Structured settlement.' A settlement under which more than one payment of money or benefits will be made. 'Structured settlement' includes any payment schemes with more than one payment, regardless of the number of payments, the amount of the payments, the periodicity of the payments or the reason for the payments.
(tt) “Subrogation.” The succession of the Department to the rights of a recipient with respect to third party payers.
(uu) “Third party liability.” The right of a recipient to recover from a third party payer the costs of Medicaid services furnished to the recipient.
(vv) “Third party payer.” A person, entity, agency, insurer, or government program that may be liable to pay, or that pays pursuant to a recipient’s right of recovery arising from an illness, injury, or disability for which Medicaid funds were paid or are obligated to be paid on behalf of the recipient. “Third party payer” includes, but is not limited to, Medicare, insurance companies, workers’ compensation, persons or entities or others alleged to be legally liable for injury to a recipient for which Medicaid provides services to the recipient, a spouse or parent who is obligated by law or court order to pay all or part of such costs, or a recipient’s estate. “Third party payer” also includes an individual or entity liable pursuant to this Chapter.
(ww) “TPL waiver.” A waiver granted by CMS of the third party liability requirements of this chapter.
(xx) “Undue hardship.” An undue hardship exists if the decedent’s home is part of the estate and that home is part of a business, including a working farm or ranch, and recovery of the home would result in the heirs or beneficiaries losing their means of making a living. “Undue hardship” includes any additional definition promulgated by HHS as mandatory administrative regulation, but does not include any portion of any additional definition that is optional unless the optional portion is specifically adopted in the State Plan. Any part of this definition that is inconsistent with a mandatory provision in HHS’s definition shall become inoperative.
(yy) “Working day.” Monday through Friday, exclusive of State holidays.
(i) Automatic assignment of benefits. By signing an application, an applicant makes an assignment of benefits to the Department on the applicant’s behalf and on behalf of any relative, ward, or legal dependent for whom application is made.
(ii) Effective dates of assignment of benefits. The assignment of benefits is effective upon a determination of eligibility and remains in effect with respect to services provided during the period of eligibility for Medicaid, including any period of retroactive eligibility.
(b) Payer of last resort. Medicaid will pay for services only after all sources of third party liability have been exhausted, except as provided by 42 U.S.C. 1396d(b) and Title V of the Social Security Act.
(c) Recovery of payments from third party payers. If the Department pays or is or becomes obligated to pay Medicaid funds on behalf of a recipient because of an injury, illness or disability for which a third party payer is legally liable, the Department may recover the full amount of such Medicaid funds from the third party payer to the extent of such payer's liability to the recipient.
(d) Estate recoveries. If the Department pays or is or becomes obligated to pay Medicaid funds on behalf of a recipient who is fifty-five (55) years of age or older, or who was an inpatient in a nursing facility, intermediate care facility for the mentally retarded or other medical institution, the Department may recover the full amount of such Medicaid funds from the estate of the deceased recipient.
(e) The Department shall be named payee on all checks, drafts, or other payments made to the Department for Medicaid benefit recovery.
(f) Liability to the Department.
(i) A person, including a third-party payer, must make the attorney general, representing the director of the Department, a party in all negotiations for settlement, compromise or release.
(ii) A person, including a third-party payer, remains liable to the State's reimbursement right unless before paying a settlement the person obtains a signed release from the attorney general.
(a) Notification of third party payer. An applicant or recipient shall notify the local agency or the Social Security Administration or the Department of the possibility of third party liability at the time of application, at the time of an eligibility redetermination, and within ten days after any change in potential third party payers.
(b) Notice to providers. A recipient shall present his or her eligibility card to a provider at the time the recipient requests services. A recipient shall also inform a provider of the existence or possible existence of a third party payer at the time the recipient requests services from the provider and upon request from the provider.
(c) Cooperation in establishing paternity and obtaining medical support. An applicant or recipient shall cooperate with the department and local agency in establishing paternity of a child eligible for Medicaid or applying for Medicaid, and identifying and collecting from any third party payer. Cooperation includes:
(i) Appearing at the Department or local agency office to provide information or evidence, under penalty of perjury, regarding paternity;
(ii) Appearing as a witness at a court or other proceeding to testify regarding paternity;
(iii) Paying to the department any medical support or medical care funds received that are covered by the assignment of benefits; and
(iv) Upon request from the Department or local agency, taking any other reasonable steps to assist in establishing paternity, determining third party liability and securing payment from third party payers.
(v) Cooperating with the Department and the Department of Family Services in establishing paternity for applicable Medicaid births for the purposes of recovery of applicable birth cost pursuant to W.S. §42-4-122 and 14-2-1001 through 1008. Total recoverable birth cost shall be determined by the Department and shall not exceed the average statewide Medicaid birth cost. Pursuant to W.S. §14-2-1003, not more than sixty (60) days after an unmarried recipient of Medicaid gives birth to a child, the Department shall notify the Department of Family Services of the total birth cost. Total birth cost shall include:
(A) Maternity related expenditures including prenatal and postpartum care from nine (9) months prior to delivery through two (2) months after delivery, excluding claims for neonatal intensive care and other associated complications.
(d) The refusal to cooperate in establishing paternity as set forth above, or the refusal to cooperate in locating third party payers or recovering payments from such payers, shall render such person ineligible for Medicaid, except as provided in 42 CFR 433.148(b).
(a) Verify and obtain information. At the time a recipient requests services from a provider, the provider shall review the recipient’s eligibility card for information regarding third party payers. The provider shall ask the recipient if the information on the card is current and whether there are or may be additional third party payers. If the provider learns of a potential third party payer that is not listed on the eligibility card, the provider shall notify the Department in writing of that information.
(b) Notify the Department of requests for information. The provider shall notify the Department in writing of any requests for medical records or information regarding a recipient by the recipient, an attorney, or any other person or entity acting on behalf of the recipient or a third party.
(c) Notification of death.
(i) An institutional provider shall notify the Department, in writing, of the death of any recipient which occurs in the facility.
(ii) Time of notice. The notification shall be mailed to the Department on or before the end of the third working day after the recipient's death.
(iii) Contents of notice. The notification shall be in the form and contain the information required by the Department.
(d) Billing. Unless otherwise provided by a TPL waiver, this subsection shall govern the submission of bills involving third party payers.
(i) Third party payer. When a provider is informed by a recipient, the Department or any other source that the recipient has or may have coverage by a third party payer, the provider shall seek payment from the third party payer before submitting a Medicaid claim. When the amount of third party liability is less than the allowable Medicaid payment, the provider may submit a Medicaid claim for the difference between the allowable Medicaid payment and the amount of third party liability. Such Medicaid claim shall be accompanied by documentation of the amount of third party liability.
(ii) Rejection by third party payer. The provider may submit a Medicaid claim to the Department after receiving a written notice from the third party payer that a request for payment for services has been rejected. In such case, the provider shall attach a copy of the notice of rejection to the Medicaid claim. The Department shall process the Medicaid claim subject to its normal procedures and standards.
(iii) Failure to respond by third party payer. A provider which has not received payment or a rejection notice from a third party payer within ninety days after submitting a request for payment may submit a Medicaid claim. The provider shall submit with the Medicaid claim a copy of the request for payment to the third party payer, documentation of an additional attempt to contact the third party payer, and any written communication the provider has received from the third party payer. The Department shall process the Medicaid claim subject to its normal procedures and standards.
(iv) Submission of Medicaid claims after payment by third party payer. A provider which has received payment from a third party payer may submit a Medicaid claim. In such cases the provider shall submit with the Medicaid claim documentation of the payment received. The Department shall allow such Medicaid claim only to the extent the allowable Medicaid reimbursement exceeds the payment received from the third party payer and subject to the Department's normal procedures and standards.
(v) Time limit for submission of Medicaid claims. A provider shall submit Medicaid claims to the Department within twelve months of the date of service, regardless of the potential involvement of a third party payer, except that Medicare crossover claims shall be submitted within six months after the date of payment or rejection by Medicare. Medicaid claims submitted after the time limits specified in this paragraph shall be rejected.
(a) Probable existence of liability of third party payer established at time of Medicaid claim. If the Department has established the probable existence of liability of a third party payer at the time a provider submits a Medicaid claim, the Department shall reject the Medicaid claim and return it to the provider for a determination of the amount of such liability.
(b) Establishing probable existence of liability of a third party payer. The probable existence of liability of a third party payer is established when the Department receives information from any source confirming the existence and extent of liability of a third party payer. Then the amount of liability is established, the Department shall process and pay Medicaid claims involving third party liability only to the extent that the Medicaid payment allowed by the Department's normal procedures and standards exceeds the amount of the third party payer's liability.
(c) Unavailability of third party payments. Third party payments are not available at the time of the submission of a Medicaid claim if the existence and extent of third party payer liability is still disputed.
(d) Timely filing requirements. Providers are subject to the timely filing requirements of Chapter 3, which requirements are incorporated by this reference.
(e) Reconsideration. A provider may request that the Department reconsider a decision to deny, reduce or recover payments because of third party liability. Such request shall be made and shall be handled pursuant to the reconsideration provisions as set forth in Chapter 3, Section 14, of the Wyoming Medicaid Rules.
(a) Reporting requirements. If a recipient's right of recovery relates to an injury, illness, or disability for which the Department has made or is obligated to make Medicaid payments for services resulting from the injury, illness, or disability.
(i) The attorney for the plaintiff shall serve the Department with a copy of the complaint by certified mail, return receipt requested, within seven days after filing the complaint; and
(ii) The attorney for the plaintiff and the attorney for the defendant(s) shall:
(A) Notify the local agency and the Department, in writing, by certified mail, return receipt requested, of any settlement or judgment pursuant to which the recipient and/or third party receives or is to receive any benefits;
(B) Make the Wyoming Attorney General, representing the Director of the Department, a party to any negotiations involving settlement, compromise or release; and
(C) Comply with the requirements of this Chapter before disbursing any benefits.
(b) Before or at the time of disbursing funds to a recipient and/or attorney's fees, the attorney acting on behalf of the recipient shall submit to the Department:
(i) A Statement of Net Recovery Distribution substantially in the form specified in Attachment IV to the rules governing contingent fees; and
(ii) Payment of the Department's portion of the recovery.
(c) Failure to comply. An attorney who fails to comply with this Chapter is subject to the provisions of Section 10(i).
(a) The Department may seek Medicaid benefit recovery pursuant to the procedures and standards of W.S. 42-4-201 et seq., which are incorporated by this reference, and applicable federal law.
(i) The Department shall have the right to bring an independent action or to intervene in any existing action in which a recipient's recovery is based, in whole or in part, on an illness, injury, or disability for which the Department has paid or is obligated to pay Medicaid funds for services furnished to the recipient.
(b) The Department may not agree to a settlement which involves the compromise or release of any portion of the federal medical assistance percentage, except as allowed by federal law.
(c) Amount of the Department's recovery. Except as provided in paragraph (i), the Department shall recover from any settlement or judgment involving a third party payer the full amount of Medicaid funds paid on behalf of the recipient because of the injury, illness or disability for which such payments were made.
(i) If, after notice pursuant to Section 9, the Department determines and states in writing that it will neither file an independent action nor intervene in an existing one, the Department shall reduce its recovery by up to:
(A) Thirty-three (33) percent as its proportionate share of attorney's fees; and
(B) The Department's proportionate share of the reasonable costs incurred in making the recipient's recovery.
(I) The Department's proportionate share of the reasonable costs incurred in making the recipient's recovery shall be determined by:
(1) Dividing the amount of the Department's recovery (the amount of Medicaid benefits reimbursed minus attorney's fees as provided in this Section) by the amount of the recipient's gross recovery; and
(2) Multiplying the resulting fraction by the reasonable costs incurred in making the recovery.
(II) For purposes of this section, "the reasonable costs incurred in making the recipient's recovery" shall be court costs, costs of litigation, travel costs, expert witness fees, deposition expenses, and any other costs necessarily incurred in making the recovery.
(ii) If the Department determines that payment of the recipient's attorney and payment of Medicaid's claim will exhaust the gross settlement, and if the Department either is informed that the recipient will not pursue a claim or the Department is unable to learn despite reasonable effort whether the recipient will pursue a claim, the Department may consider the cost-effectiveness of reducing its claim for reimbursement after evaluating the following factors:
(A) Available insurance coverage or other factors relating to the liable party;
(B) Factual and legal issues pertaining to liability;
(C) Problems of proof affecting the ability to obtain settlement or judgment;
(D) Estimated fees and costs associated with the Department's pursuing the claim.
(d) The allocation of payments. The allocation of payments in a settlement agreement between medical expenses and/or any other category of payments shall have no effect on the State's right to recover the full amount of Medicaid funds paid on behalf of a recipient.
(e) Structured settlements. If the recipient enters into a structured settlement under which the initial payment to the recipient is insufficient to reimburse the Department for the amount determined pursuant to subsection 8(c), the recipient shall pay the Department all funds received in each installment until the Department is paid in full.
(f) Medicaid payments after settlement. Except as otherwise provided in a settlement agreement approved pursuant to this Chapter, the settlement of a claim does not preclude the Department from seeking Medicaid benefit recovery for Medicaid payments made after the date of such settlement.
(g) The Department's right to recover from a third party payer, a provider, a recipient or a recipient's attorney.
(i) Right to recover.
(A) The Department shall have the right to recover directly from a third party payer to the extent of Medicaid funds paid or to be paid to a provider on behalf of a recipient when the existence and extent of liability of such payer is established.
(B) A third party payer which pays a settlement or judgment remains liable for the Department's reimbursement right unless the Department, through the Wyoming Attorney General, signs a release before such payment.
(C) The Department shall have the right to recover directly from a recipient who has received money from a third party payer to the extent of Medicaid funds paid or to be paid on behalf of such recipient for which the third party payer is liable.
(D) The Department shall have the right to recover directly from a provider which has received Medicaid funds paid on behalf of a recipient to the extent the provider has received payments from a third party payer for the same services.
(E) The Department shall have the right to recover from a recipient's attorney who knowingly failed to report to the Department any settlement from which the state was entitled to reimbursement but did not receive it.
(h) Methods of recovery. The Department may attempt to recover Medicaid funds from a liable third party, including a third party payer, a provider, a recipient or a recipient's attorney by:
(i) Initiating a civil lawsuit against the liable third party, including a third party payer, provider, recipient or recipient's attorney;
(ii) Reducing any future Medicaid payments to be made to the provider to the extent the provider has received payments from a third party payer for services for which Medicaid has also paid; or
(iii) Any other method of collecting a debt or obligation permitted by law.
(i) Failure to comply.
(i) The failure of a recipient or recipient's attorney to comply with this chapter shall not affect the Department's right to recover from the recipient to the extent of third party liability.
(ii) The knowing failure of a recipient's attorney to notify the Department of any settlement and ensure reimbursement to the state shall result in the Department having a claim against the attorney to the extent of third party liability.
(iii) The Department shall report to the Board of Professional Responsibility of the Wyoming State Bar the failure of an attorney to notify the Department of any settlement or to ensure reimbursement to the State of its Reimbursement right.
(a) The Department may pursuant to W.S. 42-4-207(c) impose a pre-death lien against a recipient's real property if:
(i) The recipient is an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution;
(ii) The Department of Family Services determines after notice and an opportunity for hearing that the recipient cannot reasonably be expected to be discharged from the medical institution and to return home;
(iii) Neither the recipient's spouse, child under age twenty-one (21), or child who is blind or disabled under 42 U.S.C. 1382c is lawfully residing in the home;
(iv) The recipient has no sibling lawfully residing in the home who has resided there at least one year before the recipient was admitted to the medical institution.
(b) Any lien imposed pursuant to W.S. 42-4-207(c) shall dissolve upon the individual's discharge from the medical institution and return home.
(c) The Department may pursuant to W.S. 42-4-207(j) impose a lien upon the recipient's real and personal property upon the recipient's death. The lien may be imposed regardless of the presence of individuals categorized in subsection (a).
(d) The Department may recover against a lien imposed under W.S. 42-4-207 only after the death of the recipient's surviving spouse, if any, and only at a time:
(i) When the recipient has no surviving child who is under age 21, or is blind and permanently and totally disabled;
(ii) For liens imposed under W.S. 42-4-207(c) when:
(A) No sibling of the individual is lawfully residing in the recipient's home who was residing there for at least one year immediately before the recipient's admission to the medical institution;
(B) No child of the recipient is lawfully residing in the recipient's home who was residing there for at least two years immediately before the recipient's admission to the medical institution, and who establishes to the state's satisfaction that he or she provided care to the recipient that permitted the recipient to reside at home rather than the institution.
(e) The Department may pursuant to W.S. 42-4-206 file a claim in a probate action if:
(i) The recipient is an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution;
(ii) The recipient has no surviving spouse, child under age twenty-one (21), or child who is blind or disabled under 42 U.S.C. 1382c;
(iii) If the claim is filed against the surviving spouse's estate, the claim is limited to the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.
(f) Procedures for recovery from probate estate.
(i) The Department shall be provided notice pursuant to W.S. 2-1-205(c) and 2-7-205(a)(iii) if Department made payment of Medicaid funds on behalf of the decedent.
(ii) The Department shall file its estate claim pursuant to W.S. 2-7-701 et seq. of the Wyoming Probate Code.
(g) The claim in a probate action shall be considered an expense of the last illness of the decedent.
(h) The Department may foreclose its lien outside the probate action pursuant to W.S. 2-17-717.
(i) Procedures for recovery from non-probate estate.
(i) The Department shall have the right to recover from non-probate assets pursuant to W.S. 42-4-206 or 207, and the discretion to choose how to proceed.
(ii) The Department shall have the right to recover directly from a transferee or other individual or entity which has possession, control, or ownership of property from the non-probate estate of a deceased recipient.
(iii) Methods of recovery. The Department may recover by:
(A) Initiating a civil action; or (B) Any other method of collecting a debt or obligation permitted by law.
(j) The Department shall waive recovery under W.S. 42-4-206 and 42-4-207 if recovery would work an undue hardship.
(k) Any lien or claim against the estate or assets of a recipient aged 55 years or older when receiving medical assistance shall be limited to amounts expended for nursing facility services, home and community-based services including waiver services, related hospital and prescription drug services, and any items or services under the State Plan.
(a) If the Department determines that an estate recovery would be an undue hardship, the Department may waive part or all of the Department's share of the amount which is recoverable pursuant to this Chapter.
(b) Notice of right to request undue hardship waiver. At the time the Department imposes a lien or files a probate claim, it shall provide written notice of the right to request an undue hardship waiver to the personal representative or known heirs who would take under the intestacy statute.
(c) Request for undue hardship waiver.
(i) Any individual who receives notice pursuant to subsection (b) may request an undue hardship waiver.
(ii) A request for an undue hardship waiver must be mailed to the Department by certified mail, return receipt requested, within thirty days of the date the individual or entity receives notice pursuant to subsection (b). The request must include documentation that the decedent's home is part of the estate, that the decedent's home is part of a business, including a working farm or ranch, and show that recovery of the home would result in the heirs or beneficiaries losing their means of making a living. The failure to provide the information required by this paragraph with the request shall result in the dismissal with prejudice of the undue hardship waiver request.
(d) Consideration of request. Upon receipt of a request for an undue hardship waiver, the Department shall consider whether the information furnished shows an undue hardship. The Department may request additional information before making a final decision. The Department's decision shall be in writing, and shall be delivered by certified mail, return receipt requested. If the request is denied, the Department shall provide notice of the opportunity to request that the Department reconsider the decision.
(e) Reconsideration. A party may request that the Department reconsider a decision to deny an undue hardship waiver. Such request shall be made and shall be handled pursuant to the reconsideration provisions as set forth in Chapter 3, Section 14, of the Wyoming Medicaid Rules.
(f) Burden of proof. The party opposing Medicaid benefit recovery shall bear the burden of showing an undue hardship by a preponderance of the evidence.
(g) The Department may elect not to pursue an estate recovery if it determines that it is not cost-effective to recover.
(a) The order in which the provisions of this Chapter appear is not to be construed to mean that any one provision is more or less important than any other provision.
(b) The text of this Chapter shall control the titles of its various provisions.
Section 14. Superseding Effect. This Chapter supersedes all prior rules or policy statements issued by the Department, including Bulletins or Manuals, which are inconsistent with this Chapter.
Section 15. Severability. If any portion of this Chapter is found to be invalid or unenforceable, the remainder shall continue in full force and effect.