Wyo. Code R. 048-0037-35
Medicaid
Chapter 35: Medicaid Benefit Recovery
Effective Date: 10/15/1999 to 03/25/2005
Rule Type: Superceded Rules & Regulations
Reference Number: 048.0037.35.10151999
MEDICAID BENEFIT RECOVERY
This Chapter is promulgated by the Department of Health pursuant to the Medical Assistance and Service Act of 1967, as amended (W.S. § 42-4-101 et seq.) and the Wyoming Administrative Procedures Act, as amended (W.S. § 16-3-101 et seq.).
(a) This Chapter and Chapter 4 shall apply to and govern all issues of Medicaid benefit recoveries and third party liability. This Chapter shall become effective upon signature of the Governor, and filing with the Secretary of State.
(b) The Division 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 this Chapter.
(a) This Chapter is intended to implement and to be read in conjunction with Wyo. Stat. §§ 42-4-114, 42-4-201 through 42-4-208, applicable federal law, including OBRA '90 and OBRA '93, and Chapter 4.
(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.
(a) "Administrator." The administrator of the Division, the administrator's agent, designee or successor.
(b) 'Adverse action.' 'Adverse action' as defined in Chapter 1, which definition is incorporated by this reference. 'Adverse action' shall not include the Division's decision about whether and/or how to recover pursuant to Section 8.
(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) '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.
(f) 'Attorney general.' The Attorney General of the State of Wyoming, his agent, designee or successor.
(g) 'Chapter 1.' Chapter 1, Rules for Medicaid Administrative Hearings, of the Wyoming Medicaid Rules.
(h) '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.
(i) 'Chapter 3.' Chapter 3, Provider Participation, of the Wyoming Medicaid Rules.
(j) 'Chapter 4.' Chapter 4, Third Party Liability, of the Wyoming Medicaid Rules.
(k) 'Claim.' A request by a provider for Medicaid payment for services provided to a recipient.
(l) 'Contract attorney.' A lawyer or law firm which has entered into a contract with the Division to assist in Medicaid benefit recovery, third party liability actions, or both. Unless otherwise specified by the contract, a contract attorney shall be authorized to represent the Division in all matters related to the enforcement of the Department's rights to Medicaid benefit recovery and/or third party liability actions.
(m) 'Cost-effective.' The determination by the Division that the expected expenses of a recovery, including, but not limited to, administrative costs, attorneys' fees, court costs, costs of litigation, travel costs, expert witness fees and deposition expenses, are less than the expected amount of the recovery.
(n) '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.
(p) 'Department.' The Wyoming Department of Health, its agent, designee or successor.
(q) 'DFS.' The Wyoming Department of Family Services, its agent, designee or successor.
(r) 'Director.' The Director of the Department of Health, the director's agent, designee or successor.
(s) 'Division.' The Division of Health Care Financing of the Department of Health, its 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 by the Division of Medicaid payments made on behalf of a recipient from the estate of a deceased recipient or from the estate of the spouse of a deceased recipient.
(v) 'HCFA.' The Health Care Financing Administration of the U.S. Department of HHS.
(x) 'Home.' A recipient's primary residence at the time the recipient enters an institution.
(y) 'HHS.' The United States Department of Health and Human Services.
(z) 'Incentive allowance.' An allowance from the sales proceeds to the heirs or other person(s), except attorneys representing the estate, who cooperate fully with the Division and/or its contract attorneys in maintaining and disposing of non-probate assets which are subject to an estate recovery.
(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 two-thousand ($2000.00) dollars;
(ii) An incentive allowance shall be permitted only upon written agreement with the Division and/or its contract attorneys, and only if the Medicaid benefits paid on behalf of the recipient exceed the value of the non-probate assets; 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 preserving or disposing of the asset(s).
(aa) '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.
(bb) 'Institutional provider.' An institution which is a Medicaid provider.
(cc) 'Lien.' With respect to the property of a recipient, probate recoveries, or non-probate recoveries, the Division's right to recover pursuant to W. S. § 42-4-207(b), (c), or (h), 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 Division's right to recover pursuant to W. S. § 42-4-202.
(dd) 'Local agency.' The county field office of DFS, its agent, designee or successor.
(ee) '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.
(ff) 'Medicaid benefit recovery.' The recovery by the Division from a recipient or a third party payer of Medicaid funds paid on behalf of a recipient. 'Medicaid benefit recovery' includes estate recovery and/or the foreclosure of a lien.
(gg) 'Medicare.' The health insurance program for the aged and disabled established pursuant to Title XVIII of the Social Security Act.
(hh) 'Medicare crossover claim.' A claim for services provided to a recipient who is eligible for Medicare and Medicaid.
(ii) '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.
(jj) 'OBRA '90.' The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508
(kk) 'OBRA '93.' The Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66.
(ll) '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.
(mm) 'Provider.' A provider as defined by Chapter 3, which definition is incorporated by this reference.
(nn) '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 non-probate estate or in distributing an estate 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 Division's reimbursement right (closing costs include the reasonable attorneys' fees of the seller, the cost of title insurance, and recording costs);
(ii) Costs of a summary probate pursuant to Wyo. Stat. § 2-1-204;
(iii) An incentive allowance in a non-probate estate;
(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 Division;
(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.
(oo) 'Recipient.' A person who has been determined eligible for Medicaid or a person formerly eligible for Medicaid on whose behalf the Medicaid program has made or is obligated to make payments of Medicaid funds. 'Recipient' includes a guardian, conservator or other legal representative acting on behalf of a recipient.
(pp) 'Recipient's gross recovery.' The total present value of a judgment or settlement arising out of a right of recovery.
(qq) '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
(rr) 'Right to reimbursement' or 'reimbursement right.' The Division'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.
(ss) '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.
(tt) 'Services.' Goods or services authorized for Medicaid payments under applicable federal law, W.S. § 42-4-103 and the rules of the Department.
(uu) '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 Division has made or is or becomes obligated to make Medicaid payments on behalf of the recipient.
(vv) '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.
(ww) 'Subrogation.' The succession of the Department to the rights of a recipient with respect to third party payers.
(xx) 'Third party liability.' The right of a recipient to recover from a third party payer the costs of Medicaid services furnished to the recipient.
(yy) '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, defendants or potential defendants in legal actions involving recipients or an individual or entity acting on behalf of a 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 and/or Chapter 4.
(zz) '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 an administrative regulation. Any part of this definition that is inconsistent with HHS's definition shall become inoperative.
(aa) '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 Division 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 or becomes liable, the Division 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 Division 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 makes payment(s), the Division may recover the full amount of such Medicaid funds from the estate of the deceased recipient.
(a) The duties of applicants, recipients and providers are set forth in Chapter 4, and are incorporated by this reference.
(b) Notification of death.
(i) An institutional provider shall notify the Division, in writing, of the death of any recipient which occurs in the facility.
(ii) Time of notice. The notification shall be mailed to the Division 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 Division.
(c) Reporting requirements. If the plaintiff and/or the defendant are not represented by an attorney, the reporting requirements of Section 7 shall apply to the plaintiff and/or the defendant.
(a) Reporting requirements. If a recipient's right of recovery relates to an injury, illness, or disability for which the Division 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 Division with a copy of the complaint by certified mail, return receipt requested, within one working day 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 Division, in writing, by certified mail, return receipt requested, of any settlement or judgment pursuant to which the recipient and/or a 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 Division:
(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 8(i).
(a) The Division 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 Division 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 Division has paid or is obligated to pay Medicaid funds for services furnished to the recipient.
(ii) If the Division files a lien against the real property of a recipient pursuant to W.S. § 42-4-207(c), it shall provide notice to the recipient of the recipient's right to request a hearing to determine whether the recipient cannot reasonably be expected to return home.
(A) Request for hearing. A request for a hearing pursuant to paragraph (i) shall be mailed to the Division by certified mail, return receipt requested, within thirty days of the date the recipient receives notice. Such request shall state with specificity the basis for asserting that the recipient can reasonably be expected to return home.
(B) Hearing procedures. A hearing pursuant to this Section shall be conducted in accordance with the provisions of Chapter 1, which are incorporated by this reference.
(b) The Division 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 Division's recovery. Except as provided in paragraphs (i) and (ii), the Division 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) The Division shall reduce its recovery if it determines and states in writing that recovering the recipient's entire net recovery would result in an unreasonable hardship. For purposes of this paragraph, 'unreasonable hardship' means that the recipient would be deprived of necessary food, shelter or medical care.
(ii) If, after notice pursuant to Section 7, the Division determines and states in writing that it will neither file an independent action nor intervene in an existing one, the Division shall reduce its recovery by:
(A) Thirty-three (33) percent as its proportionate share of attorney's fees; and (B) The Division'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 Division'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 recipient's 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.
(d) Determination of recipient's net recovery. The recipient's net recovery shall be:
(i) The recipient's gross recovery, minus
(ii) The necessary costs incurred in pursuing the judgment or settlement, minus
(iii) Attorney's fees not to exceed one-third of the amount determined by subtracting (ii) from (i).
(e) 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.
(f) Structured settlements. If the recipient enters into a structured settlement under which the initial payment to the recipient is insufficient to reimburse the Division for the amount determined pursuant to subsection 8(c), the recipient shall pay the Division all funds received in each installment until the Division is paid in full.
(g) 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 Division from seeking Medicaid benefit recovery for Medicaid payments made after the date of such settlement.
(h) The Division's right to recover from a third party payer, a provider, a recipient or a recipient's attorney.
(i) Right to recover.
(A) The Division 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 Division's reimbursement right unless the Division, through the Wyoming Attorney General, signs a release before such payment.
(C) The Division 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 Division 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.
(ii) Methods of recovery. The Division may attempt to recover Medicaid funds from a third party payer, a provider, a recipient or a recipient's attorney by:
(A) Initiating a civil lawsuit against the third party payer, provider, recipient or recipient's attorney;
(B) 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
(C) 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 Division's right to recover from the recipient to the extent of third party liability.
(ii) The failure of a recipient's attorney to comply with this Chapter shall result in the Division having a claim against the attorney to the extent of third party liability.
(iii) The Division shall report the failure of an individual or entity to comply with this Chapter to the appropriate State and/or federal agency, entity or authority, including the Wyoming State Bar and/or the Wyoming Insurance Commissioner.
(a) Right to recover. The Division may make an estate recovery if the deceased recipient:
(i) Was fifty-five (55) years of age or older or was an inpatient in an institution at the time the Division made payment of Medicaid funds on behalf of the recipient;
(ii) Has no surviving spouse;
(iii) Has no surviving child who is:
(A) Under twenty-one years of age; or
(B) Blind or permanently and totally disabled as defined in 42 U.S.C. §1382(c), which is incorporated by this reference; and
(iv) Has no son or daughter who has been:
(A) Residing in the home continuously for two years or more immediately before the date of the individual's admission to the institution; and
(B) Providing care which permitted the individual to reside at home rather than in an institution.
(v) Has no siblings who have been residing in the home continuously from at least one year before the date of the individual's admission to an institution.
(b) Priority of estate claim. The Division's claim shall be classified as an expense of last illness pursuant to W.S. § 42-4-206(b) for purposes of administration of the decedent's estate.
(c) Procedures for recovery from probate estate.
(i) The Division shall be provided notice pursuant to W.S. §§ 2-1-205(c) and 2-7-205(a)(iii) if the Division made payment of Medicaid funds on behalf of the decedent.
(ii) The Division shall file its estate claim pursuant to W.S. § 2-7-701 et seq. of the Wyoming Probate Code.
(iii) Estate claims shall be administered and paid pursuant to the procedures and priorities of W.S. § 2-7-701 et seq. of the Wyoming Probate Code.
(d) Procedures for recovery from non-probate estate.
(i) The Division shall have the right to recover from non-probate assets pursuant to Wyo. Stat. § 42-4-206 or 207, and the discretion to choose how to proceed.
(ii) The Division 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 Division may recover from a third party by:
(A) Initiating a civil lawsuit against the third party payer; or
(B) Any other method of collecting a debt or obligation permitted by law.
(iv) Amount of recoveries. The reasonable expenses incurred in preserving or disposing of the asset(s) shall be subtracted from the recipient's estate before determining the amount of the Division's recovery:
(A) If the available portion of the recipient's estate, minus the reasonable expenses incurred in preserving or disposing of the asset(s), is greater than or equal to the Medicaid funds paid on behalf of the recipient, the Division shall recover the full amount of the Medicaid funds, unless the Division determines that it is not cost-effective to do so.
(B) If the available portion of the recipient's estate, minus the reasonable expenses incurred in preserving or disposing of the asset(s), is less than the Medicaid funds paid on behalf of the recipient, the Division shall recover the full amount available, unless the Division determines that it is not cost-effective to do so.
(C) In making a recovery pursuant to subparagraphs 9(d)(iv)(A) or (B), or any other applicable law, the Division may pursue any of the following options:
(I) Request the appointment of a receiver pursuant to Wyo. Stat. § 1-33-101 et. seq to manage and dispose of the property;
(II) Enter into a property management agreement with an individual to manage and dispose of the property, which agreement may include, at the Division's discretion, provisions for an incentive allowance;
(III) File a lien against the property and foreclose the lien; or
(IV) Seek distribution of the assets of the estate pursuant to Wyo. Stat. § 2-1-204.
(D) The Division's decision to pursue one or more of the options listed in subparagraph (d)(iv)(C) or to abandon recovery because recovery is not cost-effective, is not an adverse action and shall not be subject to reconsideration or an administrative hearing pursuant to Chapter 1.
(e) Filing lien. The Division may file a lien upon the real property of an individual pursuant to W.S. § 42-4-207(b), (c) or (h).
(i) The Division may rely on information contained in the deceased recipient's application for Medicaid to determine whether the home is occupied by any of the persons listed in W.S. § 42-4-207(d).
(ii) Any person who wishes to contest an action by the Division taken in reliance upon information contained in a deceased recipient's application for Medicaid shall bear the burden of showing that the application contains erroneous information.
(a) If the Division determines that an estate recovery would be an undue hardship, the Division may waive part or all of the Division'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 Division files an estate claim pursuant to Section 9(c) or initiates any action to collect from a non-probate estate pursuant to Section 9(d), it shall provide notice of the right to request an undue hardship waiver. Such notice shall be in writing, and shall:
(i) In the event of a probate recovery, be provided to the personal representative or administrator of the estate.
(ii) In the event of a non-probate recovery, be provided to the transferee or other individual or entity from whom recovery is sought.
(c) Request for undue hardship waiver.
(i) Any individual or entity which 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 Division 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 Division shall consider whether the information furnished shows an undue hardship. The Division may request additional information before making a final decision. The Division's decision shall be in writing, and shall be delivered by certified mail, return receipt requested. If the request is denied, the Division shall provide notice of the opportunity to request that the Division reconsider the decision.
(e) Reconsideration. A party may request that the Division reconsider a decision to deny an undue hardship waiver. Such request shall be made and shall be handled pursuant to the reconsideration provisions of Section 11.
(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 Division may elect not to pursue an estate recovery if it determines that it is not cost-effective to recover costs from the recipient's heirs or beneficiaries.
(a) Request for reconsideration. A third party payer, provider, recipient or recipient's attorney may request that the Division reconsider a decision to recover Medicaid benefits pursuant to this Chapter. The request for reconsideration, the reconsideration, and any administrative hearing shall be pursuant to the reconsideration provisions of Chapter 3, which are incorporated by this reference.
(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 13. Superseding Effect. This chapter supersedes all prior rules or policy statements issued by the Division, including Bulletins or Manuals, which are inconsistent with this Chapter.
Section 14. Severability. If any portion of this Chapter is found to be invalid or unenforceable, the remainder shall continue in full force and effect.
The Wyoming Department of Health (The Department) is the single state agency appointed pursuant to the Social Security Act (the Act) to administer the Medicaid program in Wyoming. The Wyoming Medical Assistance and Services Act of 1967 (the Wyoming Act) requires the Department to administer the Medicaid program in conformance with federal standards.
The Wyoming Act authorizes the Department to promulgate necessary rules. The Wyoming Administrative Procedure Act requires all agency statements of general applicability that implement, interpret or prescribe law or policy be promulgated as rules.
The Act provides that Medicaid is the payer of last resort. Accordingly, the Department must take all reasonable measures to ascertain the legal liability of third parties to pay for care and services paid for with Medicaid funds.
The Wyoming Act contains provisions which allow the Department to recover Medicaid benefits paid in conformance with the Act. Chapter 35 was promulgated to implement both the Act and the Wyoming Act.
The 1999 Wyoming Legislature made substantial changes to the Wyoming Act's provisions regarding Medicaid benefit recovery; those amendments become effective on July 1, 1999. It is necessary to amend Chapter 35 to implement those changes.
In accordance with House Bill 180, amended Chapter 35 clarifies the Department's policies and procedures regarding Medicaid benefit recoveries, including estate recoveries. In particular, the amended rule: (1) clarifies the role of the Department's contract attorneys; (2) clarifies the procedures and standards for determining the amount of the Department's recovery, including new provisions for computing attorney's fees; (3) establishes new procedures and standards for probate and non-probate recoveries; and (4) contains various house-keeping amendments.